M.S.H. QURAISHI (CHAIRMAN).--This appeal has been heard under subsection (4) of section 22-B of I.R.0., 1969 in the absence of third Member Mr. Mahmood Akhter, who is on leave.
2. The appeal filed by the Management of Messrs National Motors Limited, Karachi is directed against the order, dated 18-1-1987 passed by the Senior Member of the Commission whereby he accepted respondent Muhammad Hanif's petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969, cancelled the second show-cause notice issued to him by the Management and directed the Management to allow him to work in the factory.
Muhammad Hanif, an employee of Messrs National Motors Limited had been served with a charge- sheet on 27-5-1981 in the following words "It has been reported that during the last 6/7 days you have been leading illegal processions, holding unauthorised meetings and making inflamatory and objectionable speeches within the premises of National Motors Limited during working hours with the clear intent of inciting all the workers/staff for the purpose of creating hatred, unrest and breach of Industrial peace, leaving aside the aspect of disruption of work." He filed a reply on 2-6-1981 in which he denied the charge.
By a separate letter he also questioned the same as being very vague. He was then served with a fresh charge on 4-6-1981 as per below "It has been reported that on 19th May, 1981 between 08-15 and 10-50 hours you were leading illegal procession, holding unauthorised meeting and making inflamatory and objectionable speeches within the premises of the Company during working hours with the clear intent of inciting all the workers/staff for the purpose of creating hatred, unrest and breach of industrial peace leaving aside the aspect of disruption of work. During the meetings and speeches you have raised following slogans The above reported acts on your part constitute grave misconduct within the meaning of Standing Order 15(3h) of the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968."
This charge too, he denied, whereupon an enquiry was held at the end of which the Inquiry Officer vide his report, dated 22-6-1981 found the respondent not guilty. The Management however, did not feel satisfied with the finding of the Inquiry Officer and served a second show-cause notice on the respondent on 29-6-1981 giving therein detailed reasoning for doing so, and asking him to show cause why he should not be punished with dismissal from service and enquiring if he would like to be heard in person in this connection. Instead of replying to this second show-cause notice, Muhammad Hanif, filed the petition before the Commission on 2-7-1981. An interim prohibitory order was issued restraining the Management from dismissing Muhammad Hanif from service.
Both sides led evidence whereafter, the impugned order was passed.
4. It appears that in connection with election of the Executive Members of the Union, which was to be held on 28-5-1981, the rival parties engaged themselves in electioneering activity. In that connection, Muhammad Hanif allegedly led illegal procession, held unauthorised meetings and made inflamatory and objectionable speeches during working hours within the factory premises.
He was suspended on 27-5-1981, and served with charge-sheet first on 27-5-1981 and again on 4- 6-1981 as already reproduced. During the enquiry the Management produced Amir Sultan, Assistant Sergeant, Aurangzeb and Mumtaz Khan, Security Watchmen. Amir Sultan, stated that on receipt of telephonic information on the 19th at 9-00 a.m. That Muhammad Hanif was coming towards the gate in a procession in order to effect illegal entry of one Ghulam Rasul an employee under suspension, he pushed out Ghulam Rasul and locked the gate, that when Muhammad Hanif came to the gate it was locked whereupon they all collected and indulged in making slogans such as after which they left. This was confirmed by Aurangzeb in his statement. The third witness Mumtaz Khan also stated that he was on duty on the 19th at about 9-00 a.m. And that Muhammad Hanif who was in a procession of 200/250 men, raised slogans Muhammad Hanif in his statement denied the allegation and asserted that he had, in fact, been on duty. He alleged that his suspension was meant to be a threat to the other workers in order to prevent them from participating in the Union election. His witness Abdul Rashid, however simply stated that he had not seen the procession. The Inquiry Officer observed that in the charge-sheet, dated 4-6-1981, no allegation of taking out illegal processions several times had been made. The charge-sheet does speak of taking out illegal procession on 19-5-1981 in its very second line. It appears that he took the words "last 6/7 days" used in the first charge, dated 27-5-1981 literally and as the occurrence had taken place on 19-5-1981, he inferred that the prosecution had itself withdrawn the previous charge of taking out procession. He also came to the view that the enquiry did not reveal that Muhammad Hanif had made a speech, let alone an objectionable and inflamatory one. According to him "the complainants merely stated that they had seen him raising slogans". Further, the Inquiry Officer took the three witnesses produced by the Management to be complainants perhaps for the reason that they all had jointly signed the report made to the Management and on this assumption held that as they had not produced "any witness to substantiate their statements", "the whole case stands weak". By this process of reasoning, he recorded the finding of Dot guilty.
5. In the second show-cause notice served on 29-6-1981, the Management after a detailed examination of the evidence produced before the Inquiry Officer declared him guilty of misconduct and asked him to show cause why he should not be punished with dismissal from service.
6. Instead of examining whether the Management had a proper basis for issuing the second show cause, dated 29-6-1981, the learned Senior Member proceeded to record evidence directly bearing on the charge which had been before the Inquiry Officer, and returned the following conclusions: --
(1) The three prosecution witnesses namely, Amir Sultan, Aurangzeb and Mumtaz Khan, Security guards, who were the only three witnesses against the petitioner before the Enquiry Officer have not been produced before me. .
(2) The three witnesses produced by the respondents are executive officers who did not see the incident of 19-5-1981. These witnesses also do not say a single word against the petitioner Muhammad Hanif.
(3) It is admitted by the respondents that both the groups contesting the elections took out processions and held meetings inside and outside the department, and both the groups contravened the office hours.
(4) Jehangir Khan a co-worker was also accused of the same charge relating to the same incident of the 19th May, 1981 Jehangir Khan was re-instated by the Labour Court on the same grounds on which the enquiry officer found the petitioner not guilty.
(5) The respondent admit that the Enquiry Officer was independent and impartial and that he found the petitioner not guilty.
(6) The charge-sheet dated 27-6-1981 is vague. It does not specify the time and place when the petitioner took out the processions. It also does not say what actual words were used by the petitioner in his speeches.
(7) The three witnesses produced in the enquiry by the Management do not say a single word that the petitioner led any procession or made any speeches.
(8) The petitioner gave a satisfactory explanation for his activities for the last 6/7 days before 27-5- 1981 for which he was charged.
(9) The incident of 19-5-1981 is not covered within 6/7 days prior to 27-5-1981 for which the Management issued charge-sheet to the petitioner.
(10) If the report of the security staff relating to 19-5-1981 was communicated to respondent No.2, it should have been mentioned in the charge-sheet issued to the petitioner on 27-5-1981.
On the above conclusions, the Bench held that "it is a fit case based on allegations of unfair labour practice in which the Commission can exercise its powers available to it under section 22-A(8)(g)".
7. 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 I.R.O., 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 I.R.O., 1969, upon allegation of unfair labour practice. In proceeding under this clause, the Commission has to examine, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose, the Commission may also scrutinise, 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 allegation of unfair act. But by itself, this will not be sufficient for reaching finding of unfair act unless one or more of the ingredients of section j 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.
8. Unfortunately, the evidence before the learned Single Bench pertained mainly to the charge served on Muhammad Hanif by the Management, thus reducing the proceedings to a second enquiry on the same charge in respect of which an enquiry had already been held by the Inquiry Officer. This is not the function of the Commission acting ~ under clause (g) of section 22-A(8). The evidence relevant to the charge had already been produced before the Inquiry Officer and in so far as the correctness of the charge was concerned, the same evidence ought to have been examined. The evidence before the Commission has to be only in respect of the ingredients under section 15. For, if the facts alleged in the charge stood proved before the Inquiry Officer then the respondent was guilty and in that situation the provisions of section 15 would not be attracted. It cannot be said that if the Management takes action against a worker who is found guilty of misconduct, it acts in violation of section 15.
9. Some of the conclusions reached by the learned Senior Member are also contrary to the facts brought before the Inquiry Officer. He refers to the charge, dated 27-5-1981 as being vague although the actual charge upon which the enquiry had proceeded, was of 4-6-1981 which was specific. The observation that the three witnesses produced by the Management before the Inquiry Officer "do not say a single word" that Muhammad Hanif led any procession or made any speech is not well-founded. Amir Sultan had stated that Muhammad Hanif had come in a group of 200/250 persons and' all of them had raised slogans. Aurangzeb stated that Muhammad Hanif came alongwith a procession upto the main gate, where they raised slogans. The third witness Mumtaz Khan also stated that Muhammad Hanif was in the procession of 200/250 people which had raised slogans and that Muhammad Hanif had also raised slogans against the Management and the Managing Director. His observation that the incident of 19-5-1981 could not fall within 6/7 days prior to 27-5-1981 is by putting too narrow a construction of the expression "6/7 days" which is to be taken in such circumstances, to indicate the period only approximately. His another observation that co-worker Jehangir Khan accused separately of the same charge had been found not guilty by the Labour Court, does not depict the whole picture because as elsewhere recited in his order, the Management had appealed from the order of the Labour Court in which appeal a compromise had been reached, whereby Jehangir Khan offered to resign and in consequence the appeal was withdrawn. Even otherwise, the finding of the learned Senior Member, as they are, would not per se bring the case within the mischief of section 15 in the absence of specific evidence relevant to that section. His finding that "it is a fit case based on allegation of unfair labour practice" is therefore, without proper material.
10. We have gone through the evidence produced before the Inquiry Officer, the finding of the Inquiry Officer and the reasons set forth by the Management in the second show cause, dated 29- 6-1981, for disagreeing with that finding. We are unable to agree that the Management has no basis for disagreeing with the Inquiry Officer's finding, or that it is acting upon no evidence or upon misreading of evidence or perverse to the evidence or is acting in colourable exercise of power.
That being so, the Management cannot be accused of acting unfairly.
11. For these reasons, we do not find ourselves in agreement with the view taken by the learned Sr.
Member and are inclined to reverse his order. However, the fact remains that the matter is more than six years old now and-no cause of complaint is said to have been occasioned by Muhammad Hanif during this period. In this background, Syed Qamaruddin Hasan, learned counsel for the Management, assures us that the Management would be quite prepared to consider awarding any reasonable penalty other than dismissal. We set aside the impugned order, dismiss the respondent's petition and leave the matter to be dealt with by the Management in the light of the evidence brought before the Inquiry Officer and of the assurance held out before us.
A.A./93/Lb.N.I.