' CH. ASAD RAZA, (MEMBER).---Muhammad Nasir petitioner, being a permanent workman in the establishment of respondent hotel as a storekeeper with his length of service of about 14 years in January 2002, brought this petition before NIRC, Karachi bench, a for redressal of his grievances in the background that as a trade unionist and an elected President of Pearl Continental Hotel Workers Union (CBA), had been enjoying the status of unopposed elected President for about 8 years and in that capacity working a lot for the welfare and benefits of the community, and that had caused annoyance to the management of the respondent hotel, who in return decided to crush the trade union activities, therefore, the management resorted to terminate the services of about 350 workers alleging short fall in the hotel business, to which the union (CBA) raised an industrial dispute and both sides entered into litigation before the available legal forums and in the same course of events, the respondent management engineered another plan to victimize and punish the office bearers and thus proceeded to issue charge sheet to the office beaters and other workers followed by notice of inquiry, and it was all done due to on account of trade union activities. Allegedly, the Pearl Continental Hotel Karachi Workers Union (CBA) which the applicant is President, filed a case of unfair labour practice along with an application under Regulation 32(2) of NIRC (Procedure and Functions) Regulations 1973, where in commission was pleased to pass an order of status-quo till next. It was contested by the management of respondent hotel. Thereafter even, the management of the respondent hotel entered into litigation with the CBA, before the honourable High Court of Sindh at Karachi by means of a constitutional petition No,2550 of 2001.
2. Maintaining that the management of the respondent hotel in order to pressurize, victimize and punish the office bearers and other members staged a drama catching fire in the hotel premises and got arrested about 13 employees including the office bearers and the petitioner was one of those who were kept in CIA Karachi without any F.I.R. Or complaint whatsoever, and that while in custody, at the instance of the hotel management the petitioner and other office bearers were allegedly compelled to submit to the management that they should resign from the respective offices of the union but as they all refused, the applicant was released from the illegal custody on 17-1-2002 which had resulted on a complaint made by his mother to the Provincial Ombudsman and on his interference and direction, the release of the petitioner and other employees of the hotel was managed. Pleading that on 21-1-2002, the petitioner reported for duty but he was not allowed to perform, rather a charge sheet was served upon him alleged therein an unauthorized absence from duty, and to that he submitted his reply but not considered and a notice of inquiry was served upon him so as to conclude the proposed action immediately by dismissing him from service.
3. Being of the view that the petitioner was likely to face and untoward situation effecting his service on the basis of the charge sheet dated 21-1-2002, there were chances of his dismissal, removal or termination from service, but only for his active participation in the trade union activities and being an office bearer of the CBA, as that constituted the commission of unfair labour practice and likely to be so,the petitioner proposed the commission in his own words:--, to
(i) deal with the case of unfair labour practice committed by the respondents against the applicant and may further be pleased to direct, prohibit and restrain the respondents from dismissing, removing and terminating the applicant from service on the basis of charge sheet dated 21-1-2002.
(ii) Any other relief which this honourable Commission may deems fit and proper under the circumstances of the case.
4. The management of the respondent hotel, while submitting the comments raised a variety of objections both legal and factual and maintained that the petition as a whole was not maintainable, the commission could not assume the jurisdiction because for redressal of his grievance under section 25-A of IRO, 1969, the remedy available was in the Labour Court and not NIRC and further, that to initiate a disciplinary action for commission of acts of misconduct was the right of the employer and such a legal right of the employer could not be curtailed, under the garb of unfair labour practice. Facts wise, it was pleased that a CBA if any is valid only for a period of two years and the petitioner could not avail any benefits out of it alter the expiry period, that the petitioner had been absent from duty without permission of the authority for the period from 7-1- 2002 to 19-1-2002, therefore amounting to misconduct he was charged sheeted rightly under the law with the consequences likely to follow if any and permissible as such.
5. To resolve the dispute between parties but through evidence, the petitioner produced his evidence both oral and documentary through affidavits of Syed Attique Ahmed, Muhammad Nasir, Muhammad Ishaq, Muhammad Nawaz and equally so by the respondent management, the evidence consists of the only R.W.1, Syed Attique Ahmed Personnel Officer, PC Karachi.
6. Having gone through the evidence available on file, and also hearing the arguments for the parties, I proceed to dispose of the matter in hand. Muhammad Nasir appeared as P.W.1 and acknowledged his affidavit tendered in evidence bearing his signatures. This instrument finds a detailed history of all the relevant facts already given in the main petition, and the disciplinary action, which according to the P.W., had followed for his active participation in the trade union activities. He maintained before the court that it was an outcome of victimization, and unfair labour practice, simply to pressurize the office bearers of the sitting CBA and get rid of unwanted material by the management.
7. When cross examined, petitioner acknowledged that the allegation in the charge sheet against him was that he was absent from duty without permission from 7-1-2002 to 19-1-2002, and that his last working day was 5-1-2002. He stated to be ignorant if his name was in the F.I.R. Lodged in the fire incident of hotel. Of course, he claimed that CIA had picked him from his house on the night in between 6-1-2002 and 7-1-2002, but he did not file any document of police department substantiating the illegal detention. He was suggested that CIA had taken him along only on 10-1- 2002 at 15-10 hours for interrogation and allowed him to go at 19-15 hours on the same day. He admitted that he did not report on duty after 10-1-2002.
8. For the inquiry initiated by the hotel management he conceded that he had participated in its proceedings, which had commended on 26-1-2002 and it was conducted in almost 20 dates and on all the dates, he had participated the inquiry. He acknowledged his signatures on the inquiry proceedings. He admitted, not to have produced any document to show that the management had got him arrested in the aforementioned case. He conceded that he did not make any complaint against CIA police, to IG police or Home department, about his illegal detention.
9. Of course some more evidence on either side is available but in view of the facts admitted and so indicated above, I do not feel the necessity of discussing the statement of anybody else. The reasons are that the statement of Muhammad Nasir is self-explanatory and sufficiently enough to decide the case in hand. As the petitioner admits of his last working day going by 5-1-2002, thereafter, for the alleged period of his absence from duty claimed by the respondent management as 7-1-2002 to 19-1-2002, it was for the employee petitioner to prove that the absence so caused was beyond his means and control. Surprisingly the petitioner a known trade unionist and a President of the sitting CBA, enjoying the office for the last eight years, and that too in the establishment of the respondent hotel, where reportedly the elite of the society makes visits, the petitioner well aware of valuable rights of freedom and free movement, despite his claimed illegal confinement with C.I.A. Karachi, did not lodge any complaint before the high-up in the Police Organization the Home Department, or any court of law. All this speaks a lot against his bona fides of being a truthful witness.
10. For the claimed misconduct and in disciplined behavior attributed by the employer towards the employee/petitioner, it is the legal vested right of the employer to proceed against a defaulter and for that, the law and rules of business have duly settled the course. The petitioner was served upon with a charge sheet of which he submitted reply, and then admittedly joined the inquiry proceedings before conducting officer. According to his own admission, the period of inquiry consumed not less than 20 adjournments, and he has been apparently given a full chance of hearing. In that background and, scenario of the facts, the law on the issue of disciplinary action and role of NIRC is well settled.
11. For a convenience reference can be made comfortably to the legal wisdom laid in 2004 SCM R 28 and 2004 PLC 209 (at page 212). In another case decided by NIRC full Bench, reported in 1987 PLC 547, to the scope of examination of the charge sheet and the domestic inquiry by the NIRC had been dealt with and it was observed as under:-- "It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary actions against workers. In such matters the National Industrial Relations Commission does not sit in judgment over the action of management against workers as an appellate forum.
The Commission is not concerned with the deficiency if any, of law or fact in the action and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or of want of sufficiently of evidence upon which the action proceed nor will the commission interference only because the action requires correction. That may be the function of the forum acting under section 25-A of the IRO 1969. The Commission's jurisdiction is and as has rightly been invoked in this case, under clause (g) of subsection (8) of section 22-A of the IRO, 1969 upon allegation of unfair labour practice, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose the Commission may also scrutinize, if the Management's action was based upon no evidence or upon misreading of evidence or was perverse to the evidence or was in colourable exercise of power. For, that, if established, will detract from the bona fides of the Management and may lend credibility to the allegations of unfair act.
But by itself, this will not be sufficient for reaching a finding of unfair act unless one or more of the ingredients of section 15, which sets out what constitutes unfair labour practice on the part of employer, stands proved independently by factual or circumstantial evidence. The examination of the Management's action is therefore, only collateral and a mere finding against the correctness of the action will not per se establish unfair labour practice within the meaning of section 15."
12. Thus considering the facts of the case, the law applicable and judicial precedents applicable to the case in hand, it is my calculated opinion that it is not a case in which, the jurisdiction of NIRC can be exercised therefore the proceedings initiated by the management from taking any disciplinary action against an employee, allegedly committing a mis-conduct, cannot be taken into account and put to judicial evaluation by means of a petition like one in hand, therefore on both the scores, of jurisdiction and the merits-failure and order accordingly. For this prolonged litigation, as both the parties have suffered a lot, I leave them to bear their own costs.