' GHULAM NAUMAN SHAIKH (MEMBER).---This appeal under section 22-D of the I.R.O., 1969 is directed against the order dated 30-3-1995 passed by the learned Member, N.I.R.C., Lahore Bench whereby he confirmed the stay already granted to the petitioner on 10-1-1995 and also the order dated 7-11-1996 whereby he accepted the petition filed by the respondent under section 22-A(8)
(g) of I.R.O., 1969 and set aside the impugned order and put back the respondent in service as Salesman and directed the petitioners to allow the respondent to perform his duties.
2. The respondent filed petition under section 22-A(8)(g) of the I.R.O., 1969 before the learned Member, N.I.R.C., Lahore Bench; stating that he is employed as Salesman in Utility Stores Corporation of Pakistan and performs the duties of workman. Charge-sheet dated 11-8-1994 for black marketing the ghee was served on him by the appellants. He denied the charges as baseless. He is Member of Utility Stores Corporation Employees Union, Faisalabad Region and in the last elections he was Election Commissioner. At the instance of appellant, this election was challenged in the Punjab Labour Court, Faisalabad. The appellant pressurised respondent to make statement against the office-bearers of the union, to which he refused, as such a bogus and baseless charge-sheet was served on him. He was forced to make statement against the union in the Punjab Labour Court, Faisalabad on 25-9-1994. He then filed affidavit before the Punjab Labour Appellate Tribunal, stating therein that by force his statement was got recorded before the Punjab Labour Court, Faisalabad. The appellant due to filing of this affidavit, ordered for enquiry on the above said charge-sheet. He has not been afforded opportunity for cross-examining the witnesses and no opportunity of defence has been provided to him in the enquiry. Since he is active member of Employees Union of Utility Stores Corporation, as such a final show-cause notice dated 31-12- 1994 has been served on him, hence he prayed that appellant be restrained from dismissing him from service on the basis of show-cause notice dated 31-12-1994.
3. This petition was filed by the respondent before learned Member, N.I.R.C., Lahore Bench on 8-1- 1995, who passed the order to issue notice to the appellants for 12-1-1995.
4. On 10-1-1995 the respondent filed application under Rule 17, Order 6 of the C.P.C. for allowing the amendment of the petition and substitute para. No. 12 of the main petition that on coming to know about filing of the petition, the respondent has been dismissed from service by letter dated 7-1-105, as such order of termination No.USC/RM/(FD)/PF-95-599, dated 7-1-1995 may be quashed.
5. Along with this application for seeking permission to amend the petition, amended petition under section 22-A(8)(g) of the I.R.O., 1969 was also filed by the respondent.
6. An application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 for grant of interim orders to suspend the operation of termination order dated 7-1-1995, was also filed and the learned Member, N.I.R.C., Lahore Bench by order dated 10-1-1995 suspended the termination order dated 7- 1-1995.
7. He were neither the learned Member-I, N.I.R.C., Lahore gave notice of this application of allowing the amendment of petition to the appellant, nor he heard the parties on this application. under Rule 17, Order 6 of C.P.C. and passed an order that he allowed the amendment as prayed by the respondent in his application. On 22-2-1995 the learned Member-I, N.I.R.C., Lahore passed the order that respondent had confessed his case before the Authority and a criminal case had already been registered; hence his petition is disposed of accordingly and consigned. However, although the petition was disposed of and was consigned to record, it was again taken up on 28-2-1995 without any order on the order-sheet passed by the learned Member, Lahore for restoration of the petition.
8. On 30-3-1995 after continuing the proceedings on previous dates, the learned Member-I, N.I.R.C., Lahore passed the order, whereby he confirmed the stay already granted to the petitioner, which was passed by him on 10-1-1995, whereby he suspended the impugned order of termination dated 7-1-1995, which stood vacated by virtue of order dated 22-2-1995, whereby the petition of the respondent was disposed of and was consigned.
9. The learned Member, N.I.R.C., Lahore Bench proceeded with the petition of the respondent, and on 16-7-1996 dismissed it in default, by imposing the fine of Rs.1,000 on the respondent.
10. As it appears from the order-sheet, dated 25-7-1996 Mr. Asmat Kamal Khan, Advocate for respondent moved an application under section 151, C.P.C. for restoration of the petition dismissed- in-default and the learned Member-I, Lahore issued notice to the appellant for restoration of the. petition for their reply on 12-8-1996. The order-sheet does not show whether any order was passed for restoration of the petition or not by the learned Member. However, on subsequent dates he called upon the Advocate of the parties to file their written arguments. Finally on 7-11-1996 an order was passed, whereby he allowed the petition of the respondent and set aside the termination order dated 7-1-1995 and directed the appellants to allow the respondent to perform his duties; hence this appeal.
11. We have heard the arguments of Mian Muhammad Salim learned Advocate for the appellants and Mirza Yousaf Baig, learned Advocate for respondent.
12. Mian Muhammad Salim, learned Advocate for the appellant has contended that there is no specific allegation of unfair labour practice against the management of the appellants. The respondent has not produced any proof that he has been active member of the trade union and due tO his trade union activities he has been victimised by the appellant. Next he has contended that respondent was charge-sheeted for black marketing the ghee and enquiry was held against him, as result whereof his services were terminated by order dated 7-1-1995. He further contended that by order dated 22-2-1995 the petition was disposed of and was consigned. It was again taken up and the order dated 30-3-1995 was passed by the learned Member, N.I.R.C., Lahore Bench, confirming the stay already granted on 10-1-1995, which is illegal and unlawful, as the petition was not pending before him, the same having been disposed off and consigned to record on 22-2- 1995. He has contended that on 16-7-1996 the petition was dismissedin-default and without any order of its restoration, it was finally decided by the learned Member by his order dated 7-11-1996, as such this final order dated 7-11-1996, accepting the petition of the respondent and directing the appellants to allow the respondent to perform his duties and order dated 30-3-1995 passed by learned Member, N.I.R.C., Lahore Bench, confirming the stay already granted to him on 10-11-1995 suspending the impugned order dated 7-1-1995 are illegal.
13. Mirza Yousaf Baig, learned Advocate for respondent has contended that appeal stands abated in view of section 2-A of Service Tribunal Act, 1973: He has contended that charge-sheet was false, as such the termination of the respondent on the basis of this false charge-sheet, is illegal.
14. We have considered the arguments advanced by Mian Muhammad Salim, learned Advocate for appellants and Mirza Yousaf Baig, learned Advocate for respondent.
15. The petition filed by respondent under section 22-A(8)(g) of the I.R.O., 1969, praying to restrain the appellants from dismissing his service on the basis of show-cause notice dated 31-12-1994 was presented before the then learned Member-I, N.I.R.C., Lahore Bench on 8-1-1995, but no interim order was passed by him. On 10-1-1995 the respondent filed application under Order 6, Rule 17, C.P.C. for allowing to amend the petition by substituting para. No.12 that order of his termination has been passed by the appellant on 7-1-1995 as such his order of termination No. USC/RM (FD)/PF-95-599, dated 7-1-1995 may be quashed. Along with this application amended petition under section 22-A(8)(g) of I.R.O., 1969 was also filed with application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 for grant of interim relief, and without allowing the amendment, the learned Member by his order dated 10-1-1995 suspended the termination order dated 7-1-1995 of the respondent.
16. From the record it appears that learned Member has not passed any order on any date allowing the amendment in the petition, and without any order of allowing the amendment in the petition, he could not have proceeded with the amended petition, wherein the relief sought was to quash the order of termination of respondent dated 7-1-1995. Moreover, the petition was disposed of and was consigned to record by order dated 22-2-1995 by the learned Member, as such the proceedings came to an end, and there is no order of the learned Member-I, N.I.R.C., Lahore as to by what orders passed by him, the proceedings were again restored and he started proceedings with the petition.
17. Although the petition was disposed of and was consigned to record on 22-2-1995, as such the same was not pending before the learned Member-I, Lahore, he passed the order on 30-3-1995, whereby he confirmed the stay already granted to the respondent on 10-1-1995, which order in our view is illegal, null and void, as having been passed by the learned Member-I, N.I.R.C., Lahore Bench without having firstly passed the order for.restoring the proceedings by any legal provision.
18. The petition was again dismissed-in-default for non-prosecution on 16-7-1996. Order-sheet dated 25-7-1996 shows that application for restoration of the petition was filed by Mr. Asmat Kamal Khan, Advocate for respondent and notice was ordered to be sent to the appellants for reply on 12- 8-1996, but the learned Member, Lahore did not pass any order for restoration of the petition, which was dismissed-in-default, and after calling upon the Advocates for the parties to file their written arguments, finally passed the order dated 7-11-1996, whereby he accepted the petition and set aside the impugned termination order dated 7-1-1995 and directed the appellants to allow the respondent to perform his duties. Since the petition was dismissed-in-default on 16-7-1996, without the order of its restoration, the proceedings were not deemed to be pending before the learned Member, as such he could not have passed the order dated 7-11-1996, accepting the petition whereby he set aside the order of termination of respondent.
' For the aforesaid reasons, the order dated 7-11-1996 passed by the learned Member-I, N.I.R.C., Lahore Bench is illegal, null and void.
19. On merits also it appears that the respondent has not made out a case of unfair labour practice, as he did not file any document to support his contention that he was active member of union and because of his trade union activities, the appellants were annoyed with him. He was charge-sheeted for black marketing ghee, which stood proved in the enquiry and ultimately it resulted in his termination on 7-1-1995. Act of unfair labour practice, if at all, already committed, the same cannot be dealt with under section 22-A(8)(g) of I.R.O., 1969 read with Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 and on this score also the petition is not maintainable.
' In the light of above stated reasons, we accept the appeal and set aside the order dated 30-3- 1995 and order dated 7-11-1996 passed by the then learned Member-I, N.I.R.C., Lahore Bench and the order for maintaining status quo passed on 14-11-1996 is recalled.
' Announced in open Court.