' CH. ASAD RAZA (MEMBER).--- Obaidur Rehman, petitioner resorted to this forum of NIRC with its bench at Karachi, for redressal of his grievance under section 49(4)(e) read with sections 63 and 46 of IRO, 2002 and Regulation 32(2)(C) of NIRC (Procedure and Functions) Regulations, 1973, in the background of the facts that he is in the employment of the respondent as Waiter for more than 10 years. The petitioner claimed himself to be the Vice President of Pearl Continental Hotel Karachi Workers Union (CBA) and also his active role for the promotion of trade union activities, and for the reasons that the majority of principal office bearers of the union were already shunted out by the management for their lawful trade union activates, he has submitted that the management off and on called the petitioner and threatened him not to take part in the trade union activities and was also threatened for the dire consequences including dismissal, removal and discharge from service. This fact was brought to the notice of Registrar trade union, vide letter dated 25-7-2003, and his union had also submitted the charter of demand on 1-1-2003, which was pending before Conciliator and different meetings were carried out, but without a result.
2. It was further submitted that the referendum proceedings for the non co-operation on the part of the respondent management could not be finalized, the Registrar of trade unions issued a letter to the management pointing out their negligent and non-cooperative attitude. A series of cases are pending before the honourable Supreme Court of Pakistan, High Court of Sindh, Labour Court and with this Commission. The petitioner claimed that he had been charge sheeted vide letter dated 28-72003 and suspended continuously on false and fabricated allegations. He has claimed that under Standing Order 15 of Standing Orders Ordinance 1969 a worker cannot be suspended for more than 28 days continuously, but the management has suspended the President of the union namely Muhammad Nasir and Social Secretary Muhammad Nawaz for more than 1-1/2 years. He has also claimed that charges in the sheet issued to the petitioner are false and based on fabricated charges just to victimize the petitioner for his lawful trade unions activities.
3. The written statement to the main case, and reply to the application was filed by the respondent on 2-9-2003. The respondent had denied the allegation levelled in application section 49(4)(e) read with sections 63 and 64 of IRO, 2002 and Regulations 32(2)(C) of NIRC (Procedure and Functions) Regulations 1973. It was claimed that for invoking the jurisdiction of this Commission, a notice to the management was necessary as laid down under section 46 of IRO, 2002, and as such the petition was filed by the applicant without following the procedure laid down in the said provision, therefore it is not maintainable, and the petition is liable to be dismissed. The respondent also claimed that applicant is a member of provincially registered trade union, and for redressal of his grievances, he cannot approach this Commission under section 49 of IRO, 2002, that even otherwise, the jurisdiction of NIRC is ousted, because, ignition of disciplinary proceedings against a worker is a statutory and legal right of the employer, and any petition under the garb of unfair labour practice to curtail the legal and statutory right of the employer is not maintainable and thus liable to be dismissed. It was maintained that, the applicant had been issued charge sheet for his misconduct, for, that he misbehaved with Chief Telephone Operator who been threatened, to face with dire consequences, at his hands, and since reply to the charge sheet was unsatisfactory, he was issued a letter of inquiry. The respondent further stated that, the inquiry is still pending against the petitioner, and he was trying to delay the inquiry proceedings on the one pretext or the other, that he had been allowed full opportunity during inquiry, but he had shown adamancy in participation of the inquiry. They have vehemently denied the allegations of unfair labour practice for, the testing of each stage of disciplinary process, which had yet to be completed cannot be entertained restraining the employer to proceed with the disciplinary action as this would be an unwarranted judicial interference in the domain of the employer's right to manage his business.
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, evidence of each variety, oral and documentary was produced and in the statement of Obaidur Rehman P.W.1 he tendered the relevant documents as well and to the contrary, the respondent management produced Mr. Amar Gul as D.W.1, Abdul Rashid and Syed Manzoor Shah.
5. Having evaluated the material on file and also the arguments for each party, I proceed to dispose of the case in hand.
6. Obaidur Rehman 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. In cross-examination the petitioner admitted that he was served with the charge sheet dated 28-7-2003 on 30-7-2006. Thereafter, he received letter of enquiry and enquiry officer had allowed him assistance of co-worker in the enquiry. The witness was also allowed to cross-examine the complainant and he also got recorded his statement and his four witnesses in the enquiry. But the enquiry officer did not allow him to produce more witnesses in the enquiry. Enquiry was completed during the period from 7-8-2003 to 18-2-2005. In cross-examination the witness also admitted that the enquiry officer used to adjourn the hearing of enquiry proceeding at his request. In cross- examination the witness also admitted that he was given warning by the management in Ramzan when he gone for offering prayer. The witness also admitted that on his first application, enquiry officer was changed but the second enquiry officer was not changed despite his request. The witness has denied that the charge sheet was served on him by the management as he had misbehaved with one Mr. Abdul Rasheed Chief Telephone Officer in the telephone office by entering unauthorizedly in Telephone Office and that charge sheet was not issued on account of his trade union activities.
8. On the other hand respondent produced Major (Retd.) Amer Gul as R.W.1. He admitted in the statement that he was not in employment on 28-7-2003. Petitioner was charge sheeted, while he joined the respondent management on 12-8-2003. He admitted that numbers of cases are pending in the Supreme Court of Pakistan, High Court, Labour Court and NIRC between the parties.
He stated that the petitioner is in disciplined the person and provoked the other workers for his ulterior motives. In his cross examination the witness admitted about past and present litigation between parties. The witness categorically stated in his cross-examination that the petitioner was charge sheeted for his misconduct and not for his trade union activities. Mr. Abdul Rashid in his cross examination admitted that he had called for the cards of the four persons who were accompanying the petitioner during the incidence which shows that the petitioner and four workers were not present of their job. Syed Manzoor Shah R.W.3 stated in his cross examination the proceedings held in inquiry proceedings and stated about the threats given by the petitioner to the complainant and other legal procedural mistakes were pointed out and refused allegations that witness holding the inquiry at the instance of the management.
9. For the alleged charge sheet, at the cost of repetition 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 cf P.W.1/4. Further, the witness acknowledged that the first inquiry officer against whom he had levelled certain allegations had been admittedly changed by the management at his request. The petitioner went 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 completes on 9- 1-2008.
10. 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. 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 Obaidur Rehman who had joined service in 1992, 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 about 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. For the claimed misconduct and indisciplined behaviour attributed by the employer towards the employee/petitioner, it is the legal vested right of the employer to proceed against the defaulter and for that, the law and rules of business have duly settled the course. The petitioner was served upon with the charge sheet, of which he submitted a 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.
12. 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 sufficiency of evidence upon which the action proceeds nor will the commission interfere 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."
13. Thus considering the facts of the case, the law applicable and the 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 misconduct, 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 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.