Mian Shakirullah Jan, Chairman .--Three appellants, through the instant appeal, have assailed the order of the learned . Single Bench whereby their common petition one petition by all the three appellants collectively filed) under Section 54(e) of the Industrial Relations Act, 2012 read with Regulation 58 (c) and (d) of the NIRC ',P&F)
Regulations, 2016 was dismissed.
2. The brief facts of the case, are that the Appellant No. 1 is the Secretary General, Appellant No. 2 is the Senior Vice President of the Employees Union (CBA) and the Appellant No. 3 is a member of the said union. The Appellant No. 1 was issued an office memorandum dated 03-11-2017 'whereby he was asked to explain his position for unauthorized absence from duty, another office memorandum of even date has been issued to him again asking him for explanation for his absence without. permission and intimation at the second time; that Appellant No 2 was issued same kind of office memorandum dated 03-11-2017 asking for his explanation for unauthorized absence; another office memorandum dated 06-11-2017 was also issued to him for his absence without intimation and prior sanction of leave; the Appellant No 3 was issued office memorandum dated 03-11 -2017 vide which he was transferred and was relieved from Golarchi Branch to Islamabad; they all challenged the office memoranda issued to them through a common petition.
3. The submission of the appellants No 1, 2 and 3 is that they are Secretary General, Office President and active member of the Employees Union ZTBL (CBA) respectively and on account of their involvement in the lawful activities of the union, the respondents who being not happy with their these activities have issued the above said office memoranda which according to the appellants is unfair labour practice on part of the respondents. Their prayer in the petition was for setting aside the aforesaid office memoranda and the respondents be directed not to proceed with the same.
4. The respondents filed their written reply , denying the stand taken by the appellants and have contended that they filed a petition before the Commission against the appellants and through an interim relief the members of the petitioner union were restrained to indulge in the unlawful trade union activities.
5. Learned counsel for the appellants has submitted that the impugned office memoranda have been issued by the respondents with ulterior motives in order to create a pretext against the appellants to proceed against them in a way which amounts to unfair labour practice on respondents' part and to restrain the appellants from their lawful and healthy trade union activities who were pressing for their legal demands.
6. Learned counsel for the respondents, on the other hand, has hotly contested the contentions of the learned counsel for the appellants by stating that the appellants despite restraint order of the Bench of the Commission were continuously indulging in the activities which were in violation of the order and also their agitation and their unauthorized absence were not permissible under the law and rules; that the office memoranda which they have challenged are simply for asking their explanation and nothing more than that and which cannot be challenged on the ground of unfair labour practice.
7. We have given anxious consideration to the arguments advanced by learned counsel for the parties and perused the available record with their able assistance.
8. Nutshell of the case is that the appellants have challenged the office memoranda calling for their explanation which was a preliminary stage for initiating of any disciplinary proceeding. The appellants instead of adopting a proper course by furnishing the explanation have challenged the same through a petition under Section 54(e) of IRA, 2012 envisaging an unfair labour practice.
9. There are two main points/questions involve in the case for de/termination which are interconnected and to be taken- together . One is the office memoranda issued by the respondents in connection with the unauthorized absence and the other is plea of unfair labour practice allegedly committed by the respondent by issuing the office memoranda and on the basis of which the instant 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 office memoranda tantamount to an unfair labour practice in the case as alleged by the petitioner .
11. For the assessment of the above mentioned question as to whether issuance of office memoranda is a pretext on the part of the respondents and they really indulged in unfair labour practice for ulterior motive giving cause to the appellants to invoke the jurisdiction of the Commission by filing petition under Section 54(e) of IRA, 2012, it would be appropriate to reproduce Section 31 which dealing 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 employers 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 method;
(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 (W .P. 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.
12. 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 54(e) (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.
13. 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.
14. The appellants have not identified any instance on their part regarding trade union activities which could have irked the employer or cause him to issue office memoranda to the appellants. The mere fact that the appellants happened to be members/of ficers of a trade union would not give them a cause under section 54(e) (31) of, IRA, 2012 to invoke the jurisdiction of this Commission simply because by way of office memoranda appellants were required to explain their unauthorized absence Reference may be made to the case titled M. Muzaf far Ali vs. Chairman N.I.R.C & 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.C amounted to an unfair labour practice in the term of section 15 of the Industrial Relations Ordinance, 1969 and which provisions are pari material to Section 54(e) (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.
15. 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.
16. In the Case Searle Pakistan Limited vs. Full Bench, National Industrial Relations Comm ission (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."
17. 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 disciplin ary 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.I.R.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."
18. The Appellant No. 3 has been transfe rred and he has challenged this transfer order by stating it as an unfair labour practice. It is the prerogative of the employer in order to keep a better worki ng condition, the employees are transferred, accordingly its challenge by stating it as unfair labour practice is unreasonable and not logical in the instant case.
19. What has been stated above and in view of the circumstances of the case, while upholding the impugned order of the I Single Bench, we hold the petitioner's challenge to the office memoranda and transfer under the provisions of law relating to unfair labour practice is not maintainable therefore, this appeal is dismissed. Also CMA is disposed of.
20. Parties to bear their own costs. File be consigned to the record room after due completion.