Mushtaq Ahmad, petitioner, an employee of Punjab Seed Corporation, posted at Rahimyar Khan, has been served with charge-sheet, dated 16-5-1992 to show cause as to why disciplinary action be not taken against him on the charge of "misconduct" under section 15(3)(b)(c) of Industrial and Commercial Employment (Standing Orders) Ordinance, 1968.
2. Feeling aggrieved, the petitioner has challenged the action of the Corporation by filing petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 accompanied by an application under sub---regulation (2) of Regulation 32 of the N.I.R.C. (Procedure and Functions)
Regulations, 1973, alleging that the petitioner had no hand in the commission of offence and that he had been falsely connected with it at the instance of the rival union and Abdul Qayyum, Assistant Manager, Quality Control, on account of his trade union activities as General Secretary of Punjab Seed Corporation, Progressive Seed Workers Union. The service of a Demand Notice as required under section 26 of the Ordinance and a Strike Notice dated 20-10-1991 and 9-4-1992, respectively, by the petitioner and President of the P.S.C. Progressive Workers Union, raising certain demands of the workers, was stated to have caused annoyance to the management of the Corporation, ultimately culminating in the false involvement of the petitioner in a theft case. The refusal on the part of the petitioner and members of the P.S.C. Progressive Seed Workers Union, to abide by the wishes of the management, was also stated to have annoyed the management. The action against - the petitioner was stated to have been taken for no other reason but to refrain him from taking part in lawful and bona fide trade union activities.
3. The allegations of the petitioner were controverted, jurisdiction of the Commission was challenged and the charge-sheet was stated to have been served in, good faith on account of the petitioner's involvement in a theft case.
4. I have given my due consideration to the arguments of learned counsel of the parties in order to ascertain whether or not the Corporation action was motivated due to union affairs of the petitioner.
5. 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 section 15 of the Industrial Relations Ordinance, 1969. To hold an inquiry against its employees suspected guilty of misconduct, is the right of 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 the 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 office-bearer of the union. The service of the show-cause notice/charge-sheet 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 in such like matters. 1990 PLC 662, 1987 PLC 545, and 1988 PLC 884.
6. The petitioner, in the instant case, is facing disciplinary proceedings on the allegation of having committed theft in respect of 75 Boras of Seed Cotton from the P.S.C. Plant Rahimyar Khan. Para
(vi) of the charge-sheet, reads:-- "That you have stolen 75 Boras of seed cotton from the Plant with the collusion of Abdur Rehman, Tractor Trolly Driver SA.6983 and Muhammad Mohsin, Gate Clerk (Work Charge) and record of the office reveals that you have not entered the same disposal. Your theft is also evidenced by the Octroi Record Receipt No. 103/373 dated 15-3-1992. You being the Store Clerk is (sic) are responsible for such loss of the employer."
7. It has come on record that a case under section 379, P.P.C. Has been registered against the petitioner in pursuance of the sanction accorded by the Commissioner, Bahawalpur Division. The case is pending before the learned Special Judge, Anti-Corruption, Bahawalpur. The charge-sheet is based on facts and is bona fide in all respects. No charge has been fabricated against the petitioner. The petitioner has not been able to clarify his position qua the charge-sheet in his reply.
The petitioner was given full opportunity of defence and the petitioner appeared before the Inquiry Committee, which provided him full opportunity to cross-examine the prosecution witnesses and to lead defence evidence in rebuttal. The inquiry is finalised and the petitioner is found guilty.
However, no final order has been passed in compliance with the direction issued by this Bench. In fact, if any action is taken against the petitioner he can assail the same under section 25-A of I.R.O., 1969 in the Labour Court which is an adequate and self-sufficient remedy. In this case, the basic matter against which the petitioner feels aggrieved, is the initiation of the disciplinary proceedings.
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, the charges are proved against the petitioner he can hardly challenge the same as constituting unfair labour practice notwithstanding his assertion in that regard.
8. Learned counsel for the petitioner contended with reference to section 47(2) of the Ordinance that without seeking prior permission of the Labour Court, the management had no justification to proceed against the petitioner and that the petitioner could not be asked to face the disciplinary and the criminal proceeding at the same time for one offence. He also complained of delay in completion of the inquiry in order to show mala fides on the part of the management. The affidavits of three employees of he management showing innocence of the petitioner, were also brought to my notice. The submissions of the learned counsel have not impressed me. The protection provided under section 47(2) of the I.R.O., 1969 cannot be equated with the unfair labour practice. The learned counsel has not been able to show that an employee facing disciplinary proceeding on the serious charges of theft and pilfrige etc. Is entitled to the protection of section 47(2) of the Ordinance. Regarding other submission I feel that criminal proceedings and departmental action can be initiated against a defaulting worker simultaneously and there is no legal bar. If an authority is needed on the point reference can be made to. 1993 SCM R 2177, wherein it was held that in departmental proceedings the desirability of a civil servant to continue in service is under examination whereas the object of the criminal proceedings is to determine and enforce the criminal liability of any accused. Adverting to the third objection, I find that the inquiry against the petitioner could not be completed within the stipulated period in view of the conduct of the petitioner himself and the management cannot be blamed for it. The petitioner had been moving applications dated 24-7-1993 and 16-8-1993 to stay the proceedings which resulted in delay. The submission of the learned counsel for the petitioner that the inquiry was delayed as no incriminating material was available against the petitioner, is not substantial. So far as the affidavits are concerned, their validity or otherwise cannot be adjudged by this forum. This question can be raised before the appropriate Court. It has also been asserted that the management had been changing the inquiry officers frequently in order to obtain a favourable report. However, nothing has been brought in support of the assertion.
9. It is not denied that the equitable remedy by way of an injunction whether mandatory or interlocutory in nature is discretionary and is never granted as a matter of course. The party applying for this remedy is required to make out a prima facie case, balance of convenience and irreparability of loss. In the instant matter, no prima facie case has been established. The remaining ingredients are also missing. There can be no two opinion that a loss which is measurable in terms of money cannot be called irreparable loss. The removal of any employee is always compensated with re-instatement 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. PLD 1981 Lah. 752.
10. It has been rightly contended on behalf of the management that the Commission has no jurisdiction to intervene in cases of disciplinary proceedings initiated against defaulting workers suspected guilty of misconduct. Under section 22-A(8)(g) of I.R.O., 1969 the jurisdiction of this Commission is restricted and limited to the cases based on allegations of unfair labour practices.
According to law laid down by the Honourable Supreme Court of Pakistan in the case of Iftikhar Ahmad PLD 1988 SC 53, followed in 1991 PLC 876, 1988 PLC 923, 1988 PLC 419 and 1994 PLC 31, this Commission has jurisdiction to interfere only if a case falls within the ambit of section 15 of the Ordinance and nothing beyond that. This provision of law provides redress of grievances arising out of victimization for trade union only. No other victimization, even if, proved, is actionable by this Commission in exercise of jurisdiction created by section 22-A(8)(g) of I.R.O., 1969.
11. Learned counsel for the management maintained that under section 22-A(8)(g) of I.R.O., 1969, it is clearly laid down that this Commission shall deal with cases of unfair labour practice in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed. As the petitioner has filed individual grievance, it shall be dealt with in the manner as laid down under section 25-A of the Ordinance. The communication of a grievance notice under the said provisions of law is a condition precedent for invoking jurisdiction of Commission. As the petitioner, according to the learned counsel, has not communicated any grievance notice to the answering respondents, the petition was incompetent and premature. In my opinion, this submission has no force. Section 22-A(8)(g) of I.R.O., 1969 is reproduced below for facility sake:-- "22-A. National Industrial Relations Commission--- (2)------------------------------..
(3)------------------------------.
(4).........................................
(5).........................................
(6) .........................................
(7) .........................................
(8)The following shall be the functions of the Commission, namely,--- (a)
(b)
(c)
(d)
(e)
(f)
(g)to deal with cases of unfair labour practices specified 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, 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 him from 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 I.R.O., 1969.
In the present case, the petitioner has not yet been removed from service and has prayed that the employer be prevented from committing any 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".
The Commission in exercise of powers given under section 22-F of the I.R.O., 1969 has framed N.I.R.C.
(P&F) Regulations, 1973. Clause (a) of sub---regulation (2) of Regulation 32 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 inquiry as it deems fit;
(b) .........................................
(c) .........................................
(d) .........................................
(e) .........................................
While dealing with 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 I.R.O., 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 I.R.O., 1969.
Even otherwise the first part of section 22-A(8)(g) of the I.R.O., 1969 lays down that the; Commission shall deal with the case in the manner laid down under section 25-A of I.R.O. Or section 34. The Commission has therefore, to conform with the manner of deciding the case which is laid down under subsection (4) of section 25-A of I.R.O., 1969, the relevant part of which 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 Labour Court), or as the case may be, the (Collective Bargaining Agent) may take the matter to the (Labour Court) and where thematter is taken to the (Labour Court) it shall give (a decision) within (seven) days from the date of the matter being brought before it as if such matter were in an individual dispute."
The word "in the manner" is used in relation 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 I.R.O., 1969, the workers are not required to serve a grievance notice on the employer under section 25-A of the I.R.O., 1969.
In this particular case, the charge-sheet shows that the petitioner is not being punished for his trade union activities but he has been served with charge-sheet for committing misconduct in the shape of theft. 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 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.
The proceedings cannot be circumvented prematurely by pleading victimization. The petition appears to have been filed to thwart the departmental 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.
12. In view what has gone above, it follows that to proceed departmentally is an exclusive domain of the employer and unless there is a streak of unfair labour practice and the inquiry is being used as a cover for an unjustified and unfair labour practice, the Commission would have no jurisdiction to go into regularity or otherwise of the inquiry. To take departmental proceedings against any employee is the vested right of the employer and the Commission has no jurisdiction to interfere with such lawful exercise of the authority by the employer. Taking cognisance of misconduct does not, in any way, effect the vested right of employer under any law/settlement or award. It needs no reiteration that if an action by the management is found to have been initiated by way of victimization or unfair labour practice, the Commission will then have complete jurisdiction to interfere with the proposed action, otherwise the Commission's jurisdiction is completely ousted because the assumption of jurisdiction by the Commission is dependent upon prima facie of unfair labour practice.
13. For the reasons mentioned above, the petition fails which is hereby dismissed. Stay recalled.