1. Petitioner No. 2 namely Muhammad Siddique Dogar, a Cashier in Ghulam Muhammadabad Branch, Faisalabad of Allied Bank of Pakistan Limited, has been served with charge-sheet (Annexure A/4) dated 26-8-1992 and inquiry notice (Annexure A/6) dated 19-9-1992, on the charge of `gross--mic conduct' with the direction to submit written explanation within three days from the receipt of the charge-sheet and to show cause as to why disciplinary action should not be taken against him.
2. Feeling aggrieved by the aforesaid action of the Bank management, Allied Bank of Pakistan Workers Union, Faisalabad through its General Secretary and Muhammad Siddique Dogar, claiming Chairman of the said Union, petitioners, have brought petition extending over fifteen pages against Zonal Chief, Allied Bank of Pakistan Limited, Faisalabad Zone and Sher Muhammad,.
3. A.V.P./Inquiry Officer, respondents, under section 22-A(8)(g) read with section 15(1)(c) and (d) of the I.R.O., 1969 along with an application under Regulation 32 of the NIRC (P&F) Regulations, 1973, asserting that petitioner No. 2 had no hand in the offence in the charge-sheet in question and that he was associated with the guilt for no other reason but due to trade union activities. Besides petitioner No. 2 some other members and office-bearers of the petitioner union were also stated to have suffered at the hands of the management by way of transfers, removal from service and reversions etc. The Bank management was also accused of having got annoyed with the petitioner union on account of writ petitions stated to have been filed on behalf of the petitioner-Union against the Bank Management in the Hon'ble Lahore High Court.
4. In the comments, allegations of the petitioners union were repudiated and the charge-sheet and the notice of inquiry were stated to have been issued to petitioner No. 2 in exercise of lawful authority and in circumstances warranted by law.
5. It is evident from the record that while posted as Cashier in Gole Karyana Branch, Faisalabad of Allied Bank Limited in October/November, 1989, petitioner No. 2 was found guilty of committing fraud by way of filing bogus affidavits and misappropriating an amount of Rs.65,000. The petitioner was served with charge-sheet dated 26-8-1992 and inquiry notice dated 19-9-1992 to explain his position. The petitioner in his reply dated 2-9-1992 controverted the allegations and claimed to have been implicated due to union activities. The reply having been found unsatisfactory, respondent No.2 was appointed as Inquiry Officer, with direction to petitioner No. 2 to appear before the Inquiry Officer on 26-9-1992 at 3-00 p.m. At Gole Karyana Branch of the Bank. The petitioner participated in the inquiry and resultedly vide inquiry report dated 28-2-1993 he was found guilty of the offences charged with. The petitioner on 24-9-1992 approached this forum and obtained a stay order. The action on charge-sheet and the inquiry notice was suspended. In view of the pleadings of the parties, the following issues were formulated by my learned predecessor in office:-- (1)Whether the Standing Order Ordinance, 1968 is not applicable to the employment of the Banks, in view of section 1(3) and 38-A of the I.R.O.?
6. (2)Whether the allegations levelled in the petition are correct and do they constitute any unfair labour practice on the part of the respondents?
(3) Relief.
7. It is well-settled that the initiation of disciplinary proceedings is a routine matter of the Industrial and Commercial Establishments and it does not lead to any presumption of unfair labour practice under Scc6on 15 of the industrial Relations Ordinance 1969. To hold an inquiry against its employees suspected guilty of misconduct, is the right of the employer which cannot be curbed or taken away merely because the employee happens to be an office --bearer of the union. The issuance of charge sheet to a defaulting worker, is the prerogative of the employer and this Commission is not vested with any power to stay disciplinary proceedings against a worker, even if, such worker happens to be an important and prominent office-bearer of the union. It needs no reiteration that if no action its taken by the management pursuant complaints of such nature, then the said activities will continue unchecked and public shall loose confidence in the Financial institutions. In the instant case I feel satisfied that the charge-sheet followed by inquiry notice have, been rightly issued purely as a disciplinary measure in respect of acts of misconduct committed by petitioner No. 2 and have nothing to do with the union activities. The service of stow-cause notice on ground of misconduct cannot be treated as an act of unfair labour practice as taking part in union activities does not give a licence to an employee to commit a misconduct. Therefore, the management cannot be restrained from proceeding further pursuant to the said show-cause notice. I In fact, if any action is taken against petitioner No. 2 he can challenge the same under section 2-A. Of the I.R.O., 1969 in the appropriate Court which is an adequate and self-sufficient remedy. In the present case, the basic matter's against which the petitioners have approached this forum, is the initiation of disciplinary proceeding against petitioner No. 2. Now, whether the charges levelled against him are correct or not, is a matter to be inquired into and decided under the relevant law by the management itself. And in case thecharges are proved against petitioner No. 2, he can hardly assail the same as constituting unfair labour practice notwithstanding his assertions in that regard.Arif Ali v. Gulshan Carpet Industries, Lahore 1994 PLC 35.
8. A large number of members and office-bearers of the petitioner-union are stated to have, been made victim of excesses by die management, by way of frequent and premature transfers to far- flunged areas and dismissal from service on account of their union affiliations. However, nothing has been brought on record in support of the assertion. It is not denied that the transfer of the employees or even the office-bearer of any trade union, 's considered to be an exercise of the unfettered right of the employer and it does not lead to any presumption of unfair labour practice.
9. The management has inherent right to transfer its employees for smooth running of its business and it cannot be challenged. Needless to say that transfer is the discretion of the employer and unless such an order is alleged to be mala fide, it cannot be successfully challenged. The Courts of law are slow in interfering in transfer matters unless such transfers, on the face of it, appear to be mala fide and tainted with extraneous considerations 5.994 PLC 31.
10. The well-settled principles of law relating to the grant of refusal of the temporary injunction are, firstly, whether the petitioner has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the petitioner would suffer irreparable loss, if the injunction is refused. Thus, although the issuance of injunction is discretionary with the Courts yet the principles governing the exercise of such discretion are fully settled. Keeping in view the above principles of law, one has to ascertain if there is proper material to show the commission of unfair labour practice within the meaning of section 15 of the I.R.O., 1969.
11. In the instant case, petitioner No. 2 is stated to have been victimised for his trade union activities and the management is accused to have treated unfairly other members and office-bearers of the petitioner union, on account of their refusal to abide by the wishes of the management and toe the line of the management on the question of privatisation of the Bank, but nothing exists on the file in support of the assertion except barred and sweeping allegations which cannot be believed in the absence of supporting material. In the circumstances, I feel no hesitation in coming to the conclusion that petitioner No. 2 has been proceeded against for no other reason but for committing fraud and misappropriating an amount of Rs. 65,000 of the Bank. The action of the management, as such, cannot be treated as an act of unfair labour practice. Petitioner No. 2 has not been able to establish a prima facie case. Even otherwise, the case is premature. The management has initiated bona fide disciplinary proceedings against petitioner No. 2 and the same have yet to reach a logical conclusion. Therefore, petitioner No. 2 cannot treated to be `aggrieved person' under law. PLD 1973 Lahore 120. In any case, since no final order has been passed, balance of convenience leans in favour of the management, because if the management is directed to refrain from passing the final order against petitioner No. 2, the entire administrative machinery of the Bank will come to halt and it will encourage other employees to break discipline and indulge in such like activities with the hope to seek protection from the NIRC on the name of unionism. Adverting to the question of irreparability of loss, I feel that there is no likelihood of any loss to the petitioner if the ad interim relief, earlier granted, is recalled. It is not denied that a loss which is measurable in terms of money cannot be called irreparable loss. PLD 1981 Lahore 752. The removal of any employee is always compensated with reinstatement and back benefits if action of the employer is found perverse or illegal. As against this, the employer suffers irreparable loss if the delinquent employee is given a bonus and allowed to remain in service, particularly in a Bank which is most sensitive institution, being custodian of public fund/assets. The entire public fund and assets remain exposed to any type of erosion in case such employees suspected of having played fraud and misappropriated money, are allowed to remain in Banks. Therefore, the loss caused by protecting even temporarily a defaulting employee, is irreparable. In this view of the matter I consider that the mandatory prerequisite for grant of ad interim relief i.e. Co-existence prima facie case, balance of convenience and irreparability of loss are not available to the aid of the petitioner in this case.
12. So far as the question, regarding jurisdiction of the Commission is concerned, I find that according to law laid down by the Hon'ble Supreme Court of Pakistan in the case of Iftikhar Hussain (PLD 1988 SC 53, para 14), this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of the IRO 1969. This provisions of law provides redress of grievances arising out of victimisation for trade union activities only. No other victimisation, even if proved, is actionable by this Commission in exercise of jurisdiction created by section 22-A (8)(g) of the I.R.O., 1969. 1991 PLC 876, 1988 PLC 923,1988 PLC 419 and 1994 PLC 31.
13. The incident of misappropriation of Rs.65,000 and commission of fraud by petitioner No. 2 is stated to have occurred in the months of October/November, 1989 during the days of posting of petitioner No. 2 in Gole Karyana Branch of the Bank. The charge-sheet has been served on 26-8-1992. The action by the management is shown to have been taken after considerable delay and that too contrary to the provisions of the West Pakistan Industrial and Commercial (Standing Order)
14. Ordinance, 1968 in order to punish petitioner No. 2 for his union activities. It is true that some delay has occurred in the issuance of the charge-sheet but it is equally true that the delay does not seem to have prejudiced the petitioners cause. The factum of delay alone does not necessarily lead to the presumption of unfair labour practice.
15. The respondents have raised a legal objection that since the petitioner has not served a grievance notice as required under section 25-A of the I.R.O., 1969, the petition moved under section 22-A(8)
(g) of the IRO is not maintainable. In my opinion, this contention has no force. Section 22-A(8)(g) of the I.R.O.,1969 is reproduced below:-
(2) -------------------------------------------
(3) -------------------------------------------
(4) --------------------------------------------
(5) -------------------------------------------
(6) --------------------------------------------
(7) -------------------------------------------
(a) -------------------------------------------
(b) -------------------------------------------
(c) -------------------------------------------
(d) -------------------------------------------
(e) -------------------------------------------
(g) to deal with cases of unfair labour practices speed in sections 15 and 16 on the part of employers, workmen trade unions of either of -them or persons acting on behalf of any of them.
16. Whether committed individually or collectively, in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and to take in such manner as may be prescribed by regulations under section.22-F, measures calculated to prevent an employer or workmen from committing an unfair labour practice;
(h) --------------------------------------------- (i)------------------------------------------- A perusal of the said section ' would reveal that it provides two remedies. First remedy is provided in a case when an unfair labour practice has already been committed. For instance if an employer in order to victimise a member or an office-bearer of a union removes him4'rom service due to his trade union activities. Such an act of unfair labour. Practice having occurred, the commission shall decide the case in the manner as laid down under section 25-A of the IRO 1969.
17. In the present case, the petitioner has not yet been removed from service and has prayed that the employer be prevented from committing an act of unfair labour practice and be restrained from dismissing him from service. This falls in the latter part of the said section viz. "and, to take, in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice".
18. The Commission exercise of powers given under section 22-F of the IRO 1969 has framed NIRC (P&F) Regulations, 1973. Sub-Regulation (2) of Regulation 32(2) reads as under:-- "32.---(2)Where a case of unfair labour practice is likely to occur, the Commission may take the following measures, namely:-- (a)it may summon all or any of the persons connected with the case which is likely to occur, hereafter in this chapter referred to as the connected persons, hear them and hold such enquiry as it deems fit.
(b) -------------------------------------------
(c) -------------------------------------------
(d) -------------------------------------------
(e) ------------------------------------------- While dealing as case for the prevention of an unfair labour practice; the Commission shall follow the procedure laid down under Regulation 32(2) and not under section 25-A of the IRO 1969. In this case the procedure has been complied with. The connected persons have been summoned and heard. There is no precondition of serving a grievance notice as required under section 25-A of the IRO 1969.
19. Even otherwise the first part of section 22-A(8)(g) of the IRO 1969 laid down that the Commission shall deal the case in the manner laid down under section 25-A of IRO or section 34. The Commission has therefore to conform with the manner of deciding the case which is laid down under subsection (4) of the IRO 1969. The relevant part of subsection (4) of section 25-A of the IRO, reads:-- "(4)if the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be subsection (3) or if the worker is dissatisfied with such decision, the worker or shop steward may take the matter to his (Collective Bargaining Agent) or the 2 (Labour Court), or as the case may be, the 1 (Collective Bargaining Agent) may take matter to the 2 (Labour Court) and where the matter is taken to the 2 (Labour Court) it shall give 3 (a decision) within 4 (seven) days from the date of the matter being brought before it as if such matter were in an industrial dispute."
20. The word `in the manner' is used in relations to procedure of trial of cases and not for the petitioner to serve a grievance notice before he files a petition. I therefore, hold that while invoking the provisions of section 22-A(8)(g) of the IRO 1969 the workers are. Not required to serve a grievance notice on the employer under section 25-A of the IRO 1969.
21. In this particular case, the charge-sheet shows that the petitioner No. 2 is not being punished for his trade union activities but he has been served with charge-sheet for committing fraud and misappropriation. When an employer is performing an act which he is exercising as a right given to him under law, he cannot be said to have committed an unfair labour practice. Initiation of disciplinary action, as stated above, and consequential proceedings is a right guaranteed of the employer. In this case petitioner No. 2 has been charge-sheeted in exercise of powers given to the employer under Standing Order 15 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and not with a view to victimise him for trade union activities.
22. The proceedings cannot be circumvented prematurely by pleading victimisation. The petition appears to have been filed to thwart thedepartmental action against the petitioner with an attempt to pre-empt the right of the management to take legal action against employees, said to have committed misconduct, 1989 PLC 447.
23. A chain of authorities were-relied on from the petitioner side to show that the Inquiry Officer had a biased mind against petitioner No. 2 and that the inquiry proceedings had not been properly conducted which has resulted in grave miscarriage of justice. The objection of the learned counsel cannot be attended to. These submissions are foreign to this Commission in view of the following observations made in 1988 PLC 884:-- "In departmental disciplinary proceedings it is not open to this forum to reopen and repeat the inquiry or to substitute itself for the Inquiry Officer. The ' Supreme Court in Sui Gas Transmission Company Limited v. The Islamic Republic of Pakistan and two others PLD 1959 SC (Pak) 66, held "that it was not the province of the Tribunal to go into the matters of the allegations but that its jurisdiction was only to see if there was a fair inquiry and the employee was given an opportunity to explain the charge." "Similarly, in Pakistan Petroleum Workers Federation Karachi v. Burmah Shell Oil Storage and Distributing Company and others PLD 1961 SC 479 (513) the principle followed by the Tribunal of not sitting in appeal over the proceedings in. The inquiry was approved."
24. In the result and for the foregoing reasons, the petition fails which is hereby dismissed. Stay recalled.