' By this single order I dispose of all the applications mentioned above filed by the applicants under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 as the issue involved in these applications is common and the same.
2. The brief facts of the cases are that the applicants filed six applications under section 22-A(8)(g) of the I.R.O., 1969 alleging acts of unfair labour practice on the part of respondents.
3. Alongwith main application, the applicants filed applications under Regulation 32(2)(c) of N.I.R.C.
(P&F) Regulations, 1973 supported by their affidavits praying therein that the respondents be retained from taking any adverse action against them on the basis of disciplinary proceedings and on these applications, this Bench of Commission passed the interim prohibitory order on the same day i,e, 10-11-1998 whereby the respondents were restrained from taking any adverse action against the applicants on the basis of charge-sheet issued against them.
4. Respondents were served and on their behalf Mr. Muhammad Humayun, Advocate filed his Vakalatnama on 16-11-1998 alongwith application for ante-dating the case. The respondents also filed preliminary legal objections on main petition and counter-affidavit on stay application. On 28-11-1998 the petitioners and their counsel were absent and the respondent's counsel filed written arguments and the case was fixed on 2-12-1998 for written arguments by the petitioner's counsel and also for order and on that date the petitioners sought adjournment on the ground of absence of their counsel and the matter was then fixed on 4-12-1998 for the same purpose.
5. On 4-12-1998 Mr. M.M. Jeelani, learned counsel for the petitioners instead of submitting written arguments as earlier decided, offered oral arguments and in the light of his arguments Mr. Muhammad Humayun, learned counsel also advanced his oral arguments.
6. Applications under section 22-A(8)(g) of, I.R.O., 1969 have been filed by the applicants in which it has been claimed that Indus Peoples' Workers Union is the C.B.A. In respect of the respondent establishment and the applicants are office-bearers and active members of the said union. The union had served charter of demands on 1-3-1997 under section 26(1) of the I.R.O., 1969 followed by strike notice on 17-8-1998 whereafter conciliation proceedings were initiated. The respondent management is reported to have filed an application under section 34 of the N.I.R.C., 1969, in the Fourth Sindh Labour Court, Karachi in order to frustrate the conciliation proceedings praying for declaring the strike notice as illegal and that no industrial dispute exists. The learned Labour Court is stated to have restrained the union proceedings on strike. The union claims to have filed, without prejudice to its legal rights an application in the Labour Court, withdrawing the strike notice with a prayer to dismiss the petition of respondent management. Subsequently, union filed another application with a prayer to grant the application for the respondent management filed by them under section 34 of I.R.O., 1969 to finally dispose of the matter. Subsequently, fresh charter of demands, dated 8-9-1998 followed by Notice of Strike, dated 21-9-1998 was served. The respondent management it has been alleged, filed an application under section 34 of I.R.O., 1969 before the Sindh Labour Court for a declaration that the demand notice/strike notice was illegal and on rejection of the said application filed a revision application in the Labour Appellate Tribunal whereon the learned Sindh Labour Appellate Tribunal was pleased to stop further conciliation proceedings and restrained the union from taking further steps in respect of the demand notice/strike notice. In the meantime, it has been alleged that the applicants, who are office- bearers and or active members of the union and considered an asset and strength of the union were charge-sheeted and notice of enquiry issued in relation to pending dispute with a view to compel the union to sign the settlement as dictated by the respondent management. It was further contended that this Bench of N.I.R.C. Had, on the application of the respondent management, earlier restrained the union from proceeding on strike on the basis of the Demand/Strike Notice.
Prayer has been made to direct the management not to proceed with domestic enquiry in respect of charge-sheet nor to remove applicants from service by way of unfair labour practice. The petition was accompanied by an application under Regulation 32(2)(c) of the N.I.R.C. (P&F)
Regulations, 1973 duly supported by an affidavit. Notice of the petition was given to the respondent management and in the meantime interim injunction was granted on the same day restraining the respondent management from taking any adverse action against the applicants on charge- sheets issued to them.
7. The respondent management of Indus Motors Company Limited filed legal objections and parawise comments wherein they have taken the plea that the petition was not maintainable and it was frivolous and vaxatious and that the Commission should not sit in judgment over the action of the management in initiating disciplinary proceedings in accordance with law. It has been alleged that this application has been filed by the applicants to stop the management from proceeding with departmental proceedings and that they cannot grant relief to the applicants in matters of disciplinary proceedings which have been initiated on the basis of misconduct committed by them without having any ingredient of unfair labour practice. The respondent management have not denied approaching the learned Labour Court and the learned Appellate Tribunal as well as raising of dispute as contended by the union.
8. A miscellaneous application was moved by the applicants on 4-12-1998 to order the production of enquiry proceedings by the respondent management. The notice was issued to respondents who vide their objections, dated 7-12-1998 opposed the grant of the application mainly on the grounds that the N.I.R.C. Could not sit in appeal over the powers of the management and had no jurisdiction to examine, validate and assess the findings of the Enquiry Officer or to determine quantum of punishment.
9. I have heard Mr. M.M. Jeelani, learned Advocate on behalf of the applicants and learned Advocate for the respondents Mr. Muhammad Humayun and also perused written arguments filed on behalf of respondents.
10. The main thrust of the argument of the Advocate for respondent for vacation of the stay and the dismissal of the petition is that the applicants were charged-sheeted for commission of act of misconduct without any element of unfair labour practice. The present applications, according to him, have been filed to frustrate the enquiry proceedings and disciplinary action against the applicants. It has further been contended by the respondent's Advocate that N.I.R.C. Cannot sit over the prerogative of the management in respect of enquiry, its finding and quantum of punishment.
It has been denied that pending litigation is the basis of charge-sheet or compelling them to sign a settlement. The applicants, it was contended, were charge-sheeted because they were found committing act of misconduct. It was also claimed by the learned counsel that an impartial enquiry was ordered in which the applicants participated and availed full and fair opportunity. It was claimed that ingredients of section 15 of the I.R.O., 1969 are not attracted and in this connection he has also referred to a decision of the Full Bench of N.I.R.C. In the case of National Motors Limited v. Muhammad Haneef reported in 1987 PLC 547. He prayed for the recall of the order, dated 10-11- 1998 and the dismissal of the petition.
11. Mr. M.M. Jeelani, learned Advocate for the applicants on the other hand has based his arguments on the plea that the management has entered into litigation in various forums arid targetted those office-bearers and members of the union who are active, most respected and asset to the union by issuing charge-sheets and holding the enquiry against them to pressurise the union and workers and to settle the industrial dispute on the terms as dictated by the respondent. It was, therefore, prayed that interim prohibitory orders passed by this Bench of Commission, dated 10-11- 1998 be confirmed, and the enquiry proceedings be ordered to be produced and examined.
12. It has been claimed by the applicants and not denied by the respondent that conciliation proceedings are pending which have only been stayed by an order of the learned Sindh Labour Appellate Tribunal. It therefore, follows that the office-bearers and the members of the union are entitled to protection under section 47 of the I.R.O., 1969 inasmuch as their services cannot be dispensed with without permission of the conciliator and/or Labour Court as the case may be. The respondent Company will, thus, have to submit enquiry proceedings/papers before these Authorities in case it wants to take any action on the basis of report of the Enquiry Officer. These Authorities will thus be entitled to scrutinize the enquiry proceedings etc. N.I.R.C. Is, however, entitled to determine on the basis of evidence led before it whether the charge has been levelled having element of unfair labour practice.
' Under the circumstances I am of the considered view that double protection is not called for and, therefore, the Application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 for stay stands dismissed and the interim order, dated 10-11-1998 is recalled and application for direction to produce enquiry papers/proceedings is also rejected. The parties may adduce their evidence. To come up on 27-1-1999 for filing affidavit-in-evidence by applicants.