' The petitioner through this petition has challenged the charge-sheet, dated 19-10-1998 and also prayed for suspension of the order, dated 1-3-1997 through which the petitioner was suspended.
The grievance of the petitioner is that he is an active trade unionist and is not only member of PASSCO Employees' Union but also organizing it for the welfare of the workers of the establishment.
It is alleged that due to his trade union activities, which are not liked by the respondents, he was placed under suspension initially for four days through letter, dated 1-3-1997 and thereafter a charge-sheet, dated 2-4-1997 was served upon him, to which the petitioner replied on 11-4-1997.
The allegation in the charge-sheet was that he has committed serious irregularities and also thousand of Gunny bags were found missing. The petitioner alleges that he was transferred from his previous place of posting and handing over of the charge took place on 10-3-1997 and that thereafter the matter remained pending with the respondents and on 11-10-1997 he has been served with a letter informing that if he did not settle the shortage/discrepancies within thirty days from the receipt of this letter, then recovery shall be made from his salary. The petitioner at this stage filed a Writ Petition No,28634 of 1997 in the honourable Lahore High Court and obtained a stay order to the effect "no adverse order to the service of the petitioner shall be passed". It is also alleged that the respondents at this stage, served another charge-sheet upon the petitioner vide letter, dated 19-10-1998 on the allegation of misappropriation of 329 wheat filled bags, while posted at Pakpattan, which were held under the charge of the petitioner. The petitioner alleges that the respondents intended to victimize him by way of termination/dismissal from service at any cost on account of his trade union activities which is an act of unfair labour practice.;
2. The petition challenging the charge-sheet, dated 19-10-1998 came up for hearing on 24-10-1998 before this Commission and this Bench passed an interim order to the effect that "in the meantime, no final order shall be passed and inquiry report shall be placed before this Bench". Notices were ordered to be issued to the respondents. The respondents appeared and filed written statement to the petition taking preliminary objections to the maintainability of the petition before this Commission and also rebutted the allegations on merits. The respondents have placed on record certain, documents i,e, detailed enquiry report, copy of the writ petition filed by the petitioner and order of the Honourable High Court, Lahore, dated 3-11-1998 passed in that writ petition. The respondents have submitted in their written statement that the petitioner had already been dismissed from service on 2-12-1998 on the basis of charge-sheet, dated 2-4-1997 which was impugned before the Honourable Lahore High Court, Lahore because while admitting the writ petition his Lordship Mr. Justice Amir Alam Khan had passed an interim order to the effect that "no adverse order to the service of the petitioner shall be passed" vide order, dated 12-12-1997 but on 3- 11-1998, the said Writ Petition was disposed of and thereafter, the respondents keeping in view the findings of the Enquiry Officer, dismissed the petitioner from service on 2-12-1998 whereas the petitioner has challenged charge-sheet, dated 19-10-1998 before this Commission and the order of dismissal has attained finality, and the petitioner has challenged his dismissal order in the Punjab Labour Court No,1, Lahore which is still pending. It is submitted that the enquiry into the charge were held and the petitioner was found guilty of misconduct and that the action has been taken strictly in accordance with law and rules of the department, and as such the respondents have not committed violation of the order, dated 24-10-1998 and that the instant petition has become infructuous.
3. I have heard the arguments of the parties and also perused the record, placed before me by the parties. The learned counsel for the petitioner has also filed written arguments rebutting the contentions and grounds taken in the written statement by the respondents. The main stress of the learned counsel for the petitioner is that the petitioner has been dismissed from service during the pendency of the petition in which the respondents were restrained from passing the final order against the petitioner and they were directed to place the inquiry report before the Bench of the Commission. It has been argued that the Bench of the Commission is under legal obligation to bring the parties back to position prevailing at the time of passing the said interim order. At this stage, the learned counsel for the petitioner also filed an application under section 151, C.P.C. For suspension of the order of dismissal, dated 2-12-1998. It has also been argued that the petitioner is an active trade unionist and in order to victimise him on one pretext or the other, the respondents have dismissed the petitioner from service taking the plea that this order is based on another charge-sheet, dated 2-4-1997.
4. The learned counsel for the respondents on the other hand submitted that action taken by the respondents is not violative of any interim order passed by this Bench of the Commission and that the fact is that the petitioner has challenged the said charge-sheet, dated 2-4-1997 before the honourable High Court in a writ petition and interim order was obtained by him but later on when it was brought to the notice of the Honourable High Court that a detailed enquiry has been held in the matter and the Enquiry Officer has submitted his findings to the Authorised Officer, the honourable High Court was pleased to dispose of the said writ petition on 3-11-1998 as having become infructuous. Thereafter, the said order of the Honourable High Court was not assailed in appeal and has attained the finality and as such the inquiry was complete, findings, of the Inquiry Officers were there in which the petitioner was found guilty, he was dismissed from service on the basis of the charge-sheet, dated 2-4-1997 which has never been assailed before this Commission.
The petitioner during the pendency of the writ petition, when served with another charge-sheet, dated 19-10-1998 for Commission of another misconduct, challenged the same before this Commission in which the respondents were restrained from passing any final order and that no order has so far been passed on the basis of that charge-sheet, dated 19-1-1998 and the petitioner has been dismissed from service on other charges on different charge-sheet. Under the orders of this Bench, enquiry report has also been placed on record for perusal of the Bench in which according to the learned counsel, the petitioner has been given full chance to defend himself but the Inquiry Officer has held the petitioner guilty of misconduct and misappropriation. The learned counsel for the respondent has also submitted that both the charge-sheets have no nexus with each other. Regarding the contention of the petitioner, that he was transferred from that Unit and that he had handed over the charge to another person, the learned counsel for the respondents submitted that the matter relates to the tenure when the petitioner was posted at that Unit and in the inquiry report, specific dates of misappropriation and misconduct, have been mentioned and when after handing over of the charge on 10-3-1997, it came to the knowledge of the respondents that the petitioner has committed serious irregularities and misappropriation they have issued him the charge-sheets and placed him under suspension for holding an inquiry which is the prerogative of the employer. The learned counsel for the respondents has also submitted that this legal and vested right of the employer cannot be snatched away on the bald allegation of unfair labour practice because the petitioner has not mentioned any specific instance of pursuading him, for his trade union activities. Every employer has the power to hold inquiry into the charges of misconduct subject to the condition that the employee is also given a fair chance to defend himself, which opportunity was given to the petitioner but he failed to prove his innocence and was ultimately dismissed from service. If the employees are left to do things at their own, it will create great hardship for the employer in smooth running of its business. The learned counsel for the respondents has also submitted that the petitioner has challenged his dismissal order, dated 2-12- 1998 before the learned Punjab Labour Court No,1, Lahore which petition is still pending and that the petitioner has also moved an application before this Commission under section 151, C.P.C. For suspension of the abovesaid order which is hit by the principle of res sub judice which fact was concealed by the petitioner and he cannot be allowed to seek remedy at two different forums for the same cause of action.
6. After giving the anxious consideration to the abovenoted arguments, I am of the opinion that the contention raised by the petitioner that the respondents have violated the order, dated 24-10-1998 passed by this Commission to the effect that "no final order shall be passed" has no force because this order was passed by this Bench of the Commission on the charge-sheet, dated 19-10-1998 impugned in this petition whereas the petitioner has been dismissed on the basis of charge-sheet, dated 2-4-1997 which was challenged in the writ petition at the time when the petitioner was served with a notice that he should settle the shortage otherwise recovery shall be made from his salary. The petitioner impugned that notice in the writ petition and the honourable High Court passed an interim order to the effect that "no adverse order to the service of the petitioner shall be passed". This order was passed on 12-12-1997 which petition remained pending till 3-11-1998 when the same was disposed of as having become infructuous. The said Writ Petition was disposed of on the statement of the learned counsel for the respondents that the inquiry is complete and the Enquiry Officer has placed his findings before the Authorised Officer, and after the disposal of that writ petition, the respondents dismissed the services of the petitioner on 2-12-1998 which has no nexus with the charge-sheet, dated 19-10-1998 impugned before this Commission in the instant petition. The other contentions raised by the learned counsel for the petitioner are also baseless and without any force because it is the right of the employer to issue charge-sheet and to hold inquiry into the charges of misconduct, is the prerogative of the employer which cannot be taken away on the allegations of unfair labour practice or on the pretext of trade union activities. Law does not impose any bar on the employer that he cannot hold enquiry against any office-bearer or member of trade unionist, guilty of misconduct and at the same time, does not give licence to an employee who is an office-bearer, to commit misconduct, misappropriation, embezzlement, during his service and the employer is helpless to proceed against such employee. It is the guaranteed right to the employer to deal with such cases in accordance with law and rules applicable to the employee subject to the conditions that there should not be any element of mala fide or unfair labour practice or victimisation/discrimination against the employee. The respondents are well within their legal right to proceed with the cases of misconduct committed by the petitioner and the National Industrial Relations Commission has no right to sit as an Enquiry Officer over the affairs of the establishment which are purely of administrative in nature. The Commission has to see only whether an unfair labour practice on the basis of trade union activities of the employee has been committed or not which is lacking in the instant case. The respondents have placed detailed inquiry report before this Bench which shows that the petitioner has been given an opportunity to defend himself but he failed and the charge levelled in the charge-sheet, dated 2-4-1997 stand proved and the petitioner after the disposal of the writ petition has been dismissed from service which order has also been assailed by the petitioner before the Labour Court No,1, Lahore but so far no final order has been passed by the respondents on the charge-sheet dated 19-10-1998 but in view of the order, dated 2-12-1998, the petitioner stands dismissed from service. The fact that the order of dismissal is pending decision before the Labour Court, has not been disclosed by the petitioner and the same was suppressed from the Bench intentionally to get an order on the application under section 151, C.P.C. It is also pertinent to mention here that in the reply submitted by the petitioner on 11-4-1997 to charge-sheet, dated 2-4-1997, the petitioner has not mentioned a single word regarding his trade union activities or that he is being victimised as such. This shows that all the story regarding trade union activities is an afterthought only to invoke the jurisdiction of this Commission which is not a fairplay on the part of the petitioner. The petitioner cannot be allowed to seek two remedies at two different forums for the same cause of action which is also hit by the provisions of C.P.C. On the principle of res sub judice.
7. Regarding the issuance of charge-sheet, dated 19-10-1998, I find that the irregularities/misappropriation was committed during the tenure when the petitioner was posted at that particular Unit and when it came to the knowledge of the respondent Corporation, they have issued a charges sheet to the petitioner which has been challenged before this Commission and the respondents were restrained from passing any final order and they were further directed to place the inquiry report before this Bench of the Commission for examination. In the charge- sheet, dated 19-10-1998 the charge levelled against the petitioner is reproduced as below:-- "That as a result of the preliminary enquiry report conducted by the Board of Enquiry headed by Dr. Khushi Muhammad, DMG, it has been found that you in connivance with others while posted as Unit Incharge, Pakpattan Godowns Wheat Crop 1996 misappropriated 329 filled bags out of the total stock of 37,855 wheat filled bags held on your charge."
' The careful perusal of the charge levelled in the charge-sheet, dated 2-4-1997 and 19-10-1998 would show that both these charges are entirely different from each other and that the respondents have also conducted preliminary enquiry in which the petitioner was found guilty of misappropriation of 329 filled bags and then the petitioner was served with a charge-sheet, dated 19-10-1998 requiring him to submit his reply within seven days which is not an act of unfair labour practice on the part of the respondents, and respondents cannot be stopped from proceeding with the case of misconduct committed by an employee during his course of service. The petitioner has not placed any document to show that he was participating in the trade union activities and has not requested this Bench that he wishes to produce evidence on this point, so in my view, the petitioner has no evidence to lead on the point of trade union activities.
8. The result of the above discussion is that I find no force in the petition filed by the petitioner being without any element of unfair labour practice because the respondents have just issued a charge- sheet, dated 19-10-1998 to the petitioner informing him about the misconduct committed by him and they have to proceed further in accordance with law. The petition filed by the petitioner is premature and is hereby dismissed with no order as to costs. The application under section 151, C.P.C. Filed by the petitioner for suspension of dismissal order, dated 2-12-1998 is also dismissed.
The order passed by this Bench on 24-10-1998 is hereby recalled. The file be consigned to record.