The appeal was heard under subsection (4) of section 22-B of I.R.O., 1969 in the absence of Mr. Muhammad Afzal Sandhu, learned Chairman.
2. Appellant Muhammad Ali Azam was charged with theft and served charge-sheet by his employer on 22-6-1987. He filed a petition under section 22-A(8)(g) of I.R.O., 1969 alongwith an application under Regulation 32(2) of the N.I.R.C. (Procedure & Functions) Regulations, 1973. He alleged that the respondent company was likely to dismiss him. He further alleged that he had been an active trade unionist. He had been elected Vice-President of the Union for two terms of that office. Lastly, he was elected the General Secretary of the Union, when the respondents with the help of Abdul Bari and other officers of the union had a vote of no-confidence allegedly passed against him. But he intended to contest the election to the office of the General Secretary once again. It was his case that the President of the Union and some other officers of the Union in collaboration with some officers of the Company had manipulated the charge-sheet containing the false allegations as well as the security reports.
3. The respondent was restrained from passing a final order against the appellant till the result of enquiry. The respondents contended that they had dismissed the appellant on 23-7-1987, before the stay order was passed and that the appellant had received his dismissal letter. They produced a postal acknowledgment receipt contending that it was signed by the appellant. The appellant, however, denied his signatures. The interim stay order was ultimately vacated and the main petition was consequently allowed to be amended. This amended petition was filed only against the Company. The evidence of the parties was recorded and the petition was transferred to the file of Mr. Baqar Ali Khan, learned Member-HI (since retired) who heard the arguments and dismissed the petition through the impugned order dated 19-10-1988. Hence this appeal.
4. the arguments in this appeal were first heard on 4-6-1989 but the order could not be written due to heavy rush of work. Consequently, the arguments were heard once again.
5. Learned counsel for the appellant urged that the appellant had been dismissed due to his trade union activities. He was elected twice as Vice-President of the Union. The vote of no-confidence on 27-11-1986 had been passed against him when he was General Secretary of the Union. The new elections were due after six or seven months of the incident of 17-6-1987. He was charged on 22-6- 1987. Reply was given on 25-6-1987. The appellant produced himself and two witnesses--Yasin and Kausar Alam before the learned Single Bench. Respondents produced only Sa'adat Ali Khan, Personnel Manager who was appointed after the incident in July, 1987. Even the Enquiry Officer was not produced before the learned Single Bench. Thus no evidence at all was produced by the respondents because the only witness produced namely, Saadat Ali Khan did not know how the appellant was trapped. His evidence was hearsay as he was not a witness of the incident. The fact that appellant was dismissed due to internecine trade union rivalry is evident from the fact that the rival of the appellant, Abdul Bari, General Secretary of the Union who had assumed the office of General Scretary as a result of no confidence motion against the appellant was present with Ishaq Sahib, Personnel Manager when the trap was laid and the appellant was brought in the office after the so called recovery from him. (page 20 of enquiry report referred). Subsequently, during the entire enquiry one representative from the union was present throughout and he signed each page of the enquiry report while the appellant had never asked for the union representative to be present.
6. He said that as far as the D.W.1 is concerned he was not in a position to depose with any authority or credibility about the trade union activities of the appellant. His knowledge was gleaned on the basis of hearsay. There was no other defence witness except D.W.
1. The respondents could have produced the Enquiry Officer as witness before the learned Single Member. This was so, when the charge of partiality and bias on the part of the Enquiry Officer was taken. He referred to the dictum in the case of Souvenir Tobacco Co. Ltd. v. Sindh Labour Court No, 2 and others 1987 PLC
605. This was a case of dismissal from service on the basis of enquiry in which charges of partiality and misconduct were levelled against the Enquiry Officer in grievance petition who was not produced by the respondent establishment in support of his enquiry report to rebut allegations of partiality and misconduct. This non-production of Enquiry Officer in support of his enquiry and in rebuttal resulted in adverse inference being drawn by Labour Court and confirmed by the Sindh Labour Appellate Tribunal and was upheld by the Karachi High Court. Learned Representative also assailed the enquiry report. He said that the enquiry was void and violated the very basis of a fair enquiry. All the prosecution witnesses in the enquiry were asked to cross-examine the accused who is now appellant before us. He said that it was the duty of the Court that it "shall" go into the facts of the case as held by Honourable Supreme Court in the case cited as Cresent Jute Products Ltd., Jaranwala v. Muhammad Yaqub and others PLD 1978 SC 207 and also in the aforesaid case of Souvenir Tobacco Co. Ltd. (1987 PLC 605). He said, the police had arrested the appellant on 17- 6-1987 on the basis of F.I.R. No, 118/87--TTPX Police Station, the police made inquiries and ultimately came to the conclusion that the case was the result of collusion and trade union rivalry and that it was a concocted case. They did not send the case under section 169, Cr. P.C. to the Magistrate for trial which report is on record and instead initiated proceedings against Irfan Shamim and Khadim Hussain Shah under section 181, Cr.P.C. A copy of the document is marked 'LL' at page 256 of the case file. Parvez Iqbal, A.S.I. also examined the witnesses of inquiry and incident afresh. Police prepared a site plan, (Mark DD page 139). According to this site plan the appellant was caught red- handed at 15 paces but the witnesses he examined stated the distance to be 50 to 60 paces. The Representative pointed out a number of material discrepancies and contradictions in the statements of Khadim Hussain, Shamsul Jalil and Irfan. He urged that Shamshul Jalil the star witness of the enquiry had in fact been apprehended for theft on a previous occasion but that fact was not recorded by Enquiry Officer. Shamsul Jalil and a worker had quarrelled between themselves and the appellant had deposed in evidence against Shamsul Jalil hence the entire scheming against the appellant by him. No stolen goods were before the Enquiry Officer or before the learned Member. He urged that the appellant had been deliberately implicated. Even in the enquiry all the prosecution witnesses were present in the Court, and their statements were recorded before each other with the result that lacuna in the statement of one was supplied by the other. In such circumstances learned Sindh Labour Appellate Tribunal had held that the enquiry was vitiated in the case of National Construction. Ltd. v. Ehsan Yousaf 1982 PLC 925. The appellant was not supplied the copy of enquiry proceedings which is against the dicta laid down in the cases reported as Ghulam Dastgir v. M.D. Ravi Rayon, Kala Shah Kaku 1977 PLC 82 at p. 85 and Islamabad Club v. Muhammad Aslam and others 1982 SCMR 126. No second show-cause notice was given which is against the dictum of the Supreme Court in case reported as Punjab Road Transport Corporation v. Punjab Labour Appellate Tribunal 1973 SCM R 455.
7. The learned counsel for the respondents urged that the appellant's case had been argued by the learned Representative, as if it were a case under section 25-A of the I.R.O., 1969, and the allegation that the impugned order of dismissal had been passed by way of unfair labour practice had nothing to do with it. He said that a long list of minor irregularities in the enquiry report had been cited. But, it was pointless, because the Commission would acquire jurisdiction only if it was shown that an unfair labour practice had been committed. He said that the appellant had been dismissed for committing theft which was a Criminal offence. It was not incumbent upon employer to prosecute an employee in the criminal Court before taking disciplinary action against him as held by Hon'ble Supreme Court in Muhammad Shamim v. Messrs Pakistan Tobacco Co. Ltd, Karachi and another 1975 SCMR 46. He said that same case is the authority for the dictum that Labour Courts are only concerned with the question whether action taken against a worker accords with law. The question whether an employee did or did not commit the offence with which he is charged is a question of fact, such questions could be inquired into, only by the Enquiry Officer.
8. We have carefully considered these submissions. We are inclined to agree with the learned counsel for the respondent that this Commission's jurisdiction under clause (g) of subsection (8) of section 22-A of the I.R.O. is attracted only when a case of unfair labour practice is made out. We have consequently to see if the case before the learned Member fell within the ambit of section 15(1) of the I.R.O., 1969 or not. We would further like to state that just because the proceedings of domestic inquiry in this case were conducted illegally and in violation of the basic tenets and procedure of conducting inquiries, as alleged by learned Representative, it would still not ipso facto become a case of A unfair labour practice nor would it lead to the conclusion of malice or mala fides. It is true that malice constitutes a very strong ingredient of unfair labour practice, but only malice does not constitute unfair labour practice, even though malice, like fraud, has also been held to be destructive of most solemn proceedings. (We would cite but one ready citation, out of a long line of authorities, in this behalf, namely Muhammad Hanif v. Punjab Labour Appellate Tribunal 1981 PLC 892, where Mr. Shamim Hussain Qadri, J, of Lahore High Court (as his. Lordship then was) held that "most solemn proceedings vitiate on proof of fraud or malice").
9. In other words, to quote the dictum of a Full Bench of this Commission in the appeal case of Nazar Muhammad, General Manager TIP Haripur and another v. Ghulam Asghar and 4 others 1988 PLC 923 at p. 926 which places its reliance on a judgment of the Honourable Supreme Court: "The Commission's jurisdiction will extend not because of illegality or irregularity in the action taken by the Management but upon evidence that such action impunged upon the provision of the section 15 of the I.R.O. In a recent judgment in: lftikhar Ahmad, Vice-President, National Bank of Pakistan and others (Civil Appeal No, 221 of 1985: P L I) 1988 SC 53 and other appeals), the Supreme Court observed: It will, therefore, appear that the cases which the Benches are empowered to hear under the clause must have an element of unfair labour practice in them, it does not encompass cases where allegation of unfair practice is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instances of unfair labour practices on the part of the employers as well as workmen. It is therefore not right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices"
10.Another judgment on the same subject was delivered in the case of National Motors Limited v.
Muhammad Hanif 1987 PLC 447, when Mr. M.S.H. Qureshi, Chairman, delivering the judgment for the Full Bench of the N.I.R.C. laid down the duties and functions of the Commission in the matters arising out of disciplinary action against the workers as follows: It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary action 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 for want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction. They may be the functions 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 proceedings 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 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."
11. In this view of the matter, while determining whether an unfair labour practice has been committed or not the allegation that the domestic enquiry violated the most basic tenets of a fair trial would be foreign to our consideration unless the element of unfair labour practice is first proved to be present. Malice or mala fides in not holding a fair and impartial enquiry could, however, be proved as a complementary factor thereto. As for the unfair labour practice, the appellant's case was based on three main grounds. The first ground taken was that the appellant intended to take part in the elections after having been removed from the office of the General Secretary as a result of the no-confidence motion against him. It is in fact stated in appeal petition itself that "appellant had announced that he would again seek the election for the post of General Secretary of the Union which was neither liked by the Management nor by the existing office- bearers of the union. It was the case of the appellant that in order to refrain him from seeking elections of the union the President and the other existing office-bearers of the union in collaboration with some officers of the respondent-company had manipulated a charge-sheet containing false allegations against him that the appellant had stolen three packets of injections and that he was caught red-handed by the security staff."
12. The incident, of no-confidence motion against the appellant and his ouster from the office of the General Secretary took place on 27-11-1986 and since then the appellant was merely a member with no office in the union. After seven months the incident of theft and appellant's being "caught red-handed" occurred on 17-6-1987. The elections of the union were to be held after yet another 6/7 months. In those circumstances, the implication of the appellant in a false case of theft to detract him from participating in pending elections which were still more than half a year ahead is not convincing. Further, it is on record that when the appellant himself was General Secretary and the Vice-President of the Union, the relations of the Union with the Management were extremely cordial, so much so that many settlements were executed during that period as a result of bilateral negotiations in which the appellant participated himself. No motive on the part of Company to keep him out of ,the Union office has been shown. Also no trade union activities of the appellant beyond his intention to participate in the impending elections have been urged before the learned Single Bench. Learned representative relied on K.M. Asaf v. Abdullah Malik 1975 PLC 781 to state that participation in general elections of a trade union amounts to trade union activities. But this citation is not relevant to the circumstances of the case, because mere intention to take part in trade union elections does (not) amount to performing trade union activity.
13. The argument that the appellant's rival the reigning General Secretary of the Union was present with the Personnel Manager when the trap was laid and the appellant was brought in after the so- called recovery of stolen goods from him, is liable to be rejected, firstly, because it was not raised before the learned Single Bench and secondly because the mere, simple and mute presence of his rival in the room of the Personnel Manager does not prove the appellant's allegation of collusion between the company and the rival faction to get rid of the appellant. The argument that the presence of a representative of the union in the domestic enquiry proceedings is a circumstance indicating a collusive interest of the Management of the Company and his rival faction in the union against the appellant is also to be repelled on the ground that it was not raised before the learned Single Bench. Even otherwise this argument has no force, firstly, because the mere, simple and mute presence of a member or officer of the union at the domestic enquiry does not prove collusion between the Management of the Company and the rival faction of the union against the appellant. Secondly because the appellant had acquiesced in the presence of the said union representative at the domestic enquiry and raised no objection before the Enquiry Officer.
14. In this view of the matter we are of the firm view that no unfair labour practice has been committed and since no unfair labour practice has been committed this Commission shall have no jurisdiction in this case despite the number of alleged illegalities and irregularities in the action taken by the Management pointed out by the learned Representative. We would therefore dismiss this appeal with no order as to costs.