Mian Shakirullah Jan, Chairman . The instant appeal is directed against the impugned order passed by the learned single bench NIRC Karachi, wher eby the appellants petition under Section 54(e) read with Section 57(2)(c) of IRA, 2012 was dismissed
2. As asserted by the appellant, he has been working in PIAC as Record Assistant since long: he is a workman and an active trade unionist; having annoyed of his trade union activities, the management issued show-cause notice under the Pakistan International Airlines Employees (Service and Discipline) Regulations, 1985 (PIA Regulation 1985) on the basis of false allegations for submitting bogus/forged Intermediate Certificate in connection of his employment.
3. The learned counsel for the appellant has adopted the arguments of Mr. Saad Nazim Hussain Advocate in Appeal No. 12(86)/19-K titled Abid Ali Khan vs. PIA which is identical to and heard together with instant appeal.
The learned counsel for the appellant has contended that the appellant has been issued show-cause notice pursuant to the order of the Hon'ble Islamabad High Court in W.P. No. 4064/2014; however , the Hon'ble Islamabad High Court had passed order against the officers and officials of the PIAC. The manual of PIAC has classified the employees drawing pay in PG-I to PG-IV as staff, the employees drawing pay in PG-V to PG-VIII as officials and the employees drawing pay in PG-IX and above as officers. The appellant is drawing pay in PG-I to PG-IV and can be classified as staff as the order does not relates to staff and the order of the Hon'ble Islamabad High Court is not applicable to the appellant; that the respondent establishment is victimizing the appellant who is a poor worker under garb of the order of the Hon'ble Islamabad High Court.
4. The learned counsel has contended that the decision of 64th ELT meeting whereby the employees in non- management cadre i.e. PG-IV and below whose degrees have been found bogus/fake were allowed a grace period of two years to submit the genuine degrees/certificates is still intact. As the decision of the Hon'ble High Court did not set aside the same as the said order is not applicable to the staff member of PIAC. The learned counsel for the appellant referred to the principle of locus poenitentia and submitted that a vested right has been accrued in favour of the appellant and it cannot be withdra wn in disadvantage of the appellant. Reliance has been placed on 2007 PLC (CS) 824 ; 1988 MLD 374 ; 2004 SCMR 1864 .
5. It has further been argued that the appellants are being vexed twice for the same accusation. Earlier the Employees Leading Team (ELT) in its 64th meeting has decided that the career growth of all employees whose degrees have or will be found bog-us/fake, to be frozen and now again, show-cause notices intending dismissal from service have been issued in violation of the principle of double jeopardy as envisaged in Article 13 of the Constitution of Pakistan.
6. The learned counsel for the appellant has submitted that PIA (Employees Service and Discipline) Regulations, 1985 are non-statutory as declared by the Hon'ble superior Courts in various cases reported as PLD 2010 SC 676; 1994 SCMR 2232 . He has argued that where the service rules of an organization are non-statutory , and being workmen disciplinary action be taken under Industrial and Commercial Employme nt (Standing Orders) Ordinance, 1968. The show-cause notice has been issued under the PIA (Employees Service and Discipline) Regulations, 1985 that are non-statutory; hence, the procedure adopted by the respondent establishment does not conform to the law in force for the time being; the submission of a fake degree has not been defined as misconduct in (S.O.
1968); hence, the impugned show-cause notice is unlawful, arbitrary , mala fide and in violation of principles of natural justice.
7. The learned counsel for the appellant has further submitted that the appellant was appointed in the MAC after scrutiny and in case of any irregularity the appointing authority is to be blamed and proceeded against in accordance with the principle enunciated by the august Supreme Court of Pakistan in a plethora of its judgments.
Reliance is placed on 2011 PLC (CS) 1239 .
8. The learned counsel has contended that the question involved in the petitions is a mixed question of law and fact and it is a well settled law that the mixed question of law and fact can only be decided after recording evidence and the learned single bench has committe d serious irregularity by non-suiting the appellant without affording an opportunity to furnish evidence to prove the accusation regarding acts of unfair labour practice on part of the management of PIAC. The learned counsel has contended that different treatment being meted out to the workers against whom there is same or similar charge and has argued that discriminatory actions are being taken on the basis of af filiation with dif ferent trade unions.
9. The learned counsel for the respondent, on the other hand, has controverted the arguments of the learned counsel for the appellant by contending that the respondent is having no enmity or ill will whatsoever with the appellant and with others to whom show-cause notices have been issued for the clarification of submitting fake certificates as reported by the board/universities. This exercise has been undertaken for all the employees who are more than 20,000 and there is no reason to proceed only about 500 to 600 employees whose certificates reported as fake. The respondent is so fair that instead of dispensing with his services at the first instance the show-cause notice has been issued to provide the appellant a fair opportunity to explain his position and defend his case. It is not only this organization which has proceeded against their employees for submitting fake certificates/degrees but so many other organization, e.g., OGDCL etc. have proceeded in fake certificate cases against their employees.
He while defending the impugned order made a prayer to maintain it and has submitted that the Learned Member has committed no illegality or irregularity but has proceeded in accordance with law .
10. It has further been submitted that PIAC has sufficient documentary evidence to proceed against the appellant and the show-cause notice has not been issued on the behest of any of the trade union as the management has no nexus or enmity with any of the regist ered trade unions rather disciplinary action has been initiated for the misconduct i.e. submission of bogus/fake/forged/tempered degrees/certificates. He has prayed that the instant appeal may be dismissed.
11. We have given anxious consideration to the arguments advanced by learned counsel for the parties and perused the available record with their able assistance.
12. There are two main points/questions involve in the case for determination which are Interconnected and to be taken together . One is the show-cause notice issued by the respondent/establishm ent (respondent) in connection with the fake academic certificate/degree and the other is plea of unfair labour practice allegedly committed by the respondent by issuing the show-cause notice and on the basis of which the instan t petition has been filed. These two questions which are not only interconnected but interdependent ultimately they converge into a single question, as to whether the issuance of the show-cause notice tantamounts to an unfair labour practice in the case as alleged by the petitioner .
13. For the assessment of the above mentioned question as to whether the show-cause notice about the fake degree is a pretext on the part of the respondent and it really indulging in unfair labour practice for ulterior motive or otherwise, a little background is required.
14. The Establishment Division in the year 2011, on the directive of the Prime Minister of Pakistan, that measures should be taken to authenticate degrees I certificates of all Federal Government Employees of the respective Ministries/Divisions their Departments, Subordinate Offices and Autonomous Bodies under their administrative control, has issued instructions accordingly . It is these directives under which the verification of the degrees/certificates was initiated through verification by the concerned Board/Universities.
15. The honourable Supreme Court has also taken cognizance of the fake certificate/degree in a number of cases and one of them is the case of Anwar Ali Vs. Chief Executive HESCO (WAPDA) (2009 SCMR 1492 ), where the Supreme Court has taken a serious view that where department has imposed a penalty of dismissal from service of civil servant for submitting forged academic certificate. The service tribunal, on appeal, changed the penalty of dismissal from service into compulsory retirement. The Hon'ble Supreme Court while setting aside the conversion of the penalty restored that of passed by the department of dismissal from service and observed that a department was free to examine the possibility of getting a criminal case registered against the civil servant. This process of submission of fake certificates and their scrutiny still continued when in the HRC case No. 8645/2018 on the directions of the honourable Supreme Court issued to scrutinize the cases even of the pilots and cabin crew and on scrutiny a number of them was disqualified as evident from the report submitted on 09-01-2019 by the management to the honourable Supreme Court.
16. The vital question, as already stated that needs to be adjudicated in the instant case is whether the mere issuance of a show-cause notice amounts to an act of unfair labour practice giving cause to a worker to invoke the jurisdiction of this Commission. The acts omissions that constitute acts of unfair labour practice on part of the employer have been enlisted under Section 31 of IRA, 2012 that is reproduced hereunder for ready reference: "31. Unfair labour practices on the part of employers.--( 1) No employer or trade union of employ ers and no person acting on behalf of either shall-
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union:
(b) refuse to employ or refuse to continu e to employ any person on the ground that such person is, or is not a member or officer of a trade union;
(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member , or officer of a trade union;
(d) dismiss, discharge, remove from employment or transfer or threaten to dismiss, discharge or remove from employment or transfer a workman or injure or threaten to injure him in respect of his employment by reason that the workman:
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union; or
(ii) participates in the promotion, formation or activities of a trade union;
(e) induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person;
(f) compel or attempt to compel any officer of the collective bargaining agent to arrive at a settlement by using intimidation, coercion; pressure, threat, confinement to a place, physical injury , disconnection of water , power and telephone facilities and such other methods;
(g) interfere with or in any way influence the balloting for the determination of the Collective Bargaining Agent;
(h) recruit any new workman during the period of a notice of strike under Section 41 or during the currency of a strike which is not illegal except where the Conciliator having been satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, has permitted temporary employment of a limited number of workmen in the Section where the damage is likely to occur;
(i) close down the whole of the establishment in contravention of Standing Order 11-A of the industrial and Commercial Employment (Standing Orders) Act, 1968 (WP . Ord. VI of 1968); or
(j) Commence, continue, instigate or incite others to take part in or expend or supply money or otherwise act in furtherance or support of, an illegal lockout.
(2) Nothing in sub-section (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being, a member or officer of a trade union of workmen.
17. For the Commission to take cognizance with respect to cases of unfair labour practices on part of the employer , they must squarely fall within the four corners of Section 31 of IRA, 2012. The averments of the petition have miserably failed to constitute an act of unfair labour practice. When no case of unfair labour practice is made out from the contents of the petition it would be a futile exercise to record evidence as the evidence is meant to prove the facts asserted in the petition whereas the petitioner has failed to point a single instance that could be held as an act of unfair labour practice.
18. Certainly , initiating disciplinary proceedings against a worker on account of misconduct is a legal-right of the employer and restraining him from exercise of such right will tantamount to preempting his decision which cannot be the scheme of the law as it may give rise to anarchy . The issuance of show-cause does not mean that the case will be invariably decided against the appellant and there is always a possibility that the same may be decided in favour of the appellant. It is well settled that mere issuance of a show-cause notice does not amount to adverse action.
19. The appellant has not identified any instance on his part regarding his trade union activities which could have irked the employer or cause him to issue show-cause notice to the appellant. The mere fact that the appellant happened to be member/of ficer of a trade union would not give him a cause under Section 31 of IRA, 2012 to invoke the jurisdiction of this Commission simply because a disciplinary proceeding had been initiated against him on the ground that he had alleged submitted bogus/forged educational certificate and thereby an act of unfair labour practice has been committed. Let us assume that the appellant has either submitted 'genuine education certificates or did not submit any alleged document, even then, in our view his case would not fall within the ambit of an unfair labour practice. Reference may be made to the case titled M. Muzaf far Ali Vs. Chairman N.I.R.O & other (1991 PLC 876) the case related to the issuance of the show-cause Notice and the plea taken of unfair labour practice, Identical to the one in hand, honourable High Court has observed that whether a grievance agitated by the petitioner before the N.I.R.0 amounted to an unfair labour practice in the term of Section 15 of the Industrial Relations Ordinance, 1969 and which provisions are pari materia to Section 31 of the IRA the Hon'ble Lahore High Court held as follows;- "A perusal of the allegations made in the complaint filed by Respondent No. 2 shows that the allegations, even if correct, do not attract any of the clause of Section 15, nor was a case of unfair labour practice made out. The petitioners were acting in lawful performance of their duties and it was in that connection that they made the reports and held inquiries. The, assumption of jurisdiction on the ground that the allegations were not correct, or the show-cause notices and the inquiry were defective, was clearly uncalled for as none of the acts complained of amounted to unfair labour practices.
20. Islamabad High Court in the case of Saeed Ahmad Vs. Chairman OGDCL W.P. No.1489 of 2016 decided on 11-07-2017 has observed that the High Court cannot agree with the contention of the learned counsel for the petitioners that the issuance of a show-cause notice amounts to an unfair labour trade practice. It has consistently been held by the superior Courts that the initiation of inquiry proceedings for a just cause would not amount to an unfair labour practice.
21. In the Case Searle Pakistan Limited Vs Full Bench, National Industrial. Relations Commission (2002 PLC 87),it was inter alia held by the Karachi High Court that an employer in initiating proceedings against an employee on the basis of an inquiry report, was not guilty of committing an unfair labour practice as defined in Section 15 of the Industrial Relation Ordinance. 1969 The relevant extract of the judgment is reproduced as under- Employer in initiating proceedings against the employer on the basis of the inquiry report submitted by the Inquiry Officer was not guilty of committing unfair labour practice as defined in S 15 of Industrial Relations Ordinance. 1969
22. The Islamabad High Court in Saeed Ahmed case (supra ) has held: "Framing of charges, conducting enquiry issuing show-cause notice and taking action after enquiry are the various stages of continuous ,process of disciplinary proceedings. Disciplinary , proceedings one initiated must reach the finality , culminating in imposing punishment or exonerating the delinquent. Testing each stage of the proceeding as to whether they are in conformity with the norms as laid down would be an unwarranted judicial interference in the domain of disciplinary authority by the N.LR.C. Compliance of the norms laid down under the disciplinary rules can be examined when the process culminates in a penal action causing injury to the delinquent. Non-observance of norms at various stages may vitiate the ultimate action of imposition of a penalty or exoneration, as the case may be. I fully agree with the observation of the learned Member NIRC that the object of a show-cause notice is to provide an opportunity to the person to whom it is addressed to explain his positio n and to defend himself against the allegation that is leveled against him. It is well settled that mere issuance of a show-cause notice does not amount to an adverse action."
23. What has been stated above and in view of the circumstances of the case, while upholding the impugned order Of the Single Bench, we hold the petiti oner's challenge to the show-cause notice under the provisions of law relating to unfair labour practice is not maintainable; thus, any discussion on other points of arguments is not required. Also CMA is disposed of.
24. During the course of arguments another question came under consideration is with regard to the applicability of the laws dealing with the disciplinary proceedings in the case of the workman of the respondent establishment. The respondent having their own service rules the Pakistan International Airlines Employees (Service and Discipline)
Regulations, 1985 dealing with such cases. However , in case of the workman the primary law dealing with such type of cases is Industrial and Commercial 'Employment (Standing Order) Ordinance, 1968 According to proviso to Section 1(4)(c) the Ordinance would not be applicable in case of the establishment having statutory rules of service. It is only the statutory rules which have been excluded from the purview of Ordinance: 1968 in case of workman. However , such a no provisions do not exist regarding the to statutory rules. The respondent's service rules i.e. Pakistan international Airlines Employees (Service and Discipline) Regulations, 1985 are non-statutory as held by the honourable Supreme Court in case titled Pakistan International Airline and others Tanveer-ur- Rehman PLD 2010 SC 676, Mrs. Anisa Rehman vs. PIA and others 1994 SCMR 2232 and by the honourable Peshawar High Court incase titled Zafar Iqbal .vs. PIA through General Manager (Personnel) PIA Karachi and 4 others 2011 PLC (C.S) 259. Since the PIA Service Rules are non-statutory so would be the Ordinance, 1968 which is applicable.
However this aspect is not available in the present lis as the petition has been dismissed on the question of non- maintainability of the petition before reaching the adjudication of the instant question.
25. The other question for consideration as to whether the Industrial and Commercial Employment (Standing Order) Ordinance, 1968 would cover the cases of fake and forged degree certificates. The honourable Supreme Court in case titled M. Musa vs. HBL etc. 2012 SCMR. 97C' held that using fake certificates either . getting employment or further benefits has been dealt under Standing Order 15 (3).(b) of Ordinance, 1968. The relevant extract of the judgment 'is reproduced as under:- "The Standing Order provides for punishment. Sub-clause (3) of it defines the acts' and misconduct: Sub-clause (2) of this Standing Order lays down that a workman guilty of misconduct shall be liable to punishments and item (iv)
Of it provides dismissal without payment of any compensation in lieu of notice The acts and omission which are misconduct are enumerated. in sub-clause (3) item (b) of it is 'theft, fraud, dishonesty in connection with the employer's business or property'. In our view; the acts- and omission of the appellant squarely falls within the above referred item (b) of sub-clause (3) of Standing Order 15 in that by producing bogus intermediate marks sheet and certificate in the first place, the appel lant has committed fraud and dishonesty and further by obtaining benefit on the basis of such marks sheet / certificate that of promotion to the post of Cashier in the Bank, the appellant again committed fraud and dishonesty in respect of the employer's business and property in that he procured for himself unlawful gain in the form of monetary benefits which amounts to defrauding the property of the employer ."
26. In the case of Saeed Ahmed (Supra) Islamabad High Court has also expressed the same view as under:- "the submission of fake academic qualifications to an employer in indeed an act of misconduct."
27. Before parting with the order we may mention here that that the PIA Employees (Service and Discipline)
Regulations, 1985 of the PIA are non-statutory and if any action is to be taken against a workman either it should be under the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and if it is under the establishment's own rules or under the terms and conditions of the appointment letter , the same should be in conformity with the Ordinance, 1968 and not in violation of the same as in case of non-statutory rules the provisions of the Ordinance 1968 shall prevail.
28. The respondent if intends to proceed against the appellant it should be strictl y in accordance with and in line with the Ordinance 1968. In this respect we are fortified by a judgment of the Hon'ble Supreme Court in case titled Hafeez Shah vs. United Bank Limited (2001 SCMR 931) wherein it was held that provisions of Standing Order 15 of the West Pakistan Commercial and Employment (Standing Order) Ordinance, 1968 are mandatory and their non-observance would vitiate the entire proceedings.
29. Moreover , the fundamental right of fair trial and due process is to be ensured.
30. Parties to bear their own costs. File be consigned to the record room after due completion.