' Petitions under section 22A (8)(g) of the I.R.O., 1969 have been filed by the abovementioned applicants in which it has been claimed that applicants Muhammad Hussain Qureshi is President, applicant Muhammad Mushrefene is General Secretary, applicant Muhammad Aslam is Joint Secretary and applicant Miss Zakia is active member of Berger Points Pakistan Limited Democratic Employees' Union which is CBA in the establishment/respondent. It is claimed by the applicants that the respondents are intimidating them to refrain from trade union activities as they are an eye sore for the respondents. It is also claimed by the applicants that the issue of late attendance and violence etc. Of misconduct is false or settled between the C.B.A. And the respondent management which inflicts two punishments for late arrival/coming in the shape of withholding of Good Attendance Bonus as well as adjustment of total late arrival from overtime of that month or from causal sick leave entitlements. It is for this reason that no warning or show-cause notice was ever issued to applicants or any other workers. It is further alleged that due to filing of three applications in the Commission, the respondent-company, to intimidate them have issued a show-cause notice on account of late coming followed by enquiry letter. This is an act of unfair labour practice as the applicants have been threatened of dire dismissal from service
2. The petitions are accompanied by an application under Regulation 32(2)(c) of NIRC (P & F)
Regulations, 1973 duly supported by affidavits of petitioners.
3. On stay applications mentioned above, my learned predecessor had passed an interim prohibitory order restraining tile respondents from taking any adverse action against the petitioners on the charge-sheets.
4. Comments and counter-affidavits were filed by the respondents who have denied commission of acts of unfair labour practice claiming it to be right of the employer to take disciplinary action. It is alleged that the jurisdiction of the Commission has been invoked with mala fide intention. It has been claimed by the company that they encourage healthy trade union activities and have asserted that only regular and punctual workers are entitled to Good Attendance Bonus and only as a result of their choice/conduct that is to come late does not entitle one to earn this bonus.
Overtime work is compensated. It is claimed that charge-sheet was issued to the applicants and enquiry was also conducted. Copies of enquiry proceedings and findings have been placed on record. Rejoinder affidavits were filed by the applicants. The parties have also filed their written arguments.
5. The applicants in support of their plea for confirmation of stay have -referred to NLR 1982 Civil 490; PLD 1983 Kar. 387; 1982 PLC 691 and 1996 PLC 12. All these cases are distinguishable as they relate to the principle as laid down under Order 39, Rules 1 and 2, C.P.C. For instance NLR 1982 Civil 490 says that only when serious questions of facts and law are involved, case is to be made out for the injunction. Likewise PLD 1983 Kar. 387 provides only for prima facie case at interlocutory stage.
However 1976 PLC 158 provides that a member of a trade union discriminated on account of his union activities will be covered under section 15(1)(c), of I.R.O., 1969 and is an act of unfair labour practice. However, 1982 PLC 691 cited by the learned counsel for the applicant is distinguishable as in that case Secretary was charged for snatching away papers from his officer which was held to be improper conduct and not misconduct. Absence from duty was held as covered by term malingering. Finally, in 1996 PLC 12 it was held by the NIRC that unfair labour practice cannot be decided on oral arguments but being a mixed question of law and facts requires evidence. Even this is too strict a preposition for not in all the cases evidence will be -required but only if there are circumstances as in the present case where evidence will finally determine the fate of the case on grounds and reasons.
6. It need not be emphasized that the Commission cannot sit in appeal over the enquiry conducted by the employer as held by the Hon'ble Supreme Court of Pakistan in the case reported in PLD 1988 SC 53. The provision of section 22-A(8)(g) of the I.R.O., 1969 does not confer a general jurisdiction upon the Bench of the Commission to entertain all kinds of grievance petitions even though these may not contain an element of unfair labour practices.
7. At present and for limited purpose of confirmation or vacation of stay, it is necessary to examine if issuance of charge-sheets in the background or- settlement/custom/practice/usage relating to absence from work or violence etc. Constitutes unfair labour practice or misconduct. It is not in dispute that the applicants are office-bearers except one who is an active member of the union. It is not claimed by the management that apart from General Secretary, President and one other officer-bearer, other employees at present or in the past were charge-sheeted or dismissed for late coming or habitual absence. No doubt habitual late or habitual absence without permission is a misconduct but the provisions of Standing Orders can be modified to the advantage of workers.
The claims of the applicant that the subject of the late attendance stands settled between the C.B.A. Union and the respondent management whereby in practice two punishments are awarded for late arrival by withholding Good Attendance Bonus or by adjusting total late arrival in the calendar months against overtime or in its absence it is adjusted against earned/casual/sick leave entitlement. The position requires in depth evidence about the past practice, customs and usage as well as position of adjustment towards overtime and/or leave entitlement which is asserted by the applicant and denied by the management.
8. No doubt, the management is entitled to charge-sheet office-bearers of the union in their capacity as employees/workers if they commit some act of misconduct but with a. Condition that it neither discriminates between the ordinary workers and the office-bearer of a union nor it contains ann element of unfair labour practice in the background of the issuance of charge-sheet.
' Under the peculiar circumstances of these cases I am of the view that evidence in these cases be recorded before these issues are determined or clarified. Prima facie at this stage, no ground is made for vacation of the stay granted by this Bench of Commission. Lei the parties lead their evidence to show what actions were taken in the past on account of late attendance, violence or other alleged acts of misconduct committed by the workers in the context of settlement or custom, practice and usage or only the General Secretary, President and few other office-bearers and active members of the union have been singled out as it is nowhere claimed that ordinarily workers' guilts of habitual late coming were also subjected to same treatment. Moreover, it has not come on record whether or not any advisory note for improving the habitual late coming was issued to the concerned workers, before issuance of the charge-sheet. These points need evidence and consideration. ; In view of above, the interim prohibitory orders passed by this Bench of Commission, dated 9-7- 1998, 12-8-1998, 27-7-1998 and 27-8-1998 shall remain in field and are-hereby confirmed by this single order passed in F all the abovementioned four cases as the issues involved in the case are same and common. The parties are directed to lead evidence in support or otherwise of these petitions. To come up on 6-1-1999 for filing affidavit-in-evidence by the petitioners.