' Petitioner filed this petition under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 alongwith an application under Regulation 32, N.I.R.C. (P&F) Regulations, 1973 based upon the alleged acts of unfair labour practice on the part of the respondents assailing the impugned order of dismissal of the petitioner dated 22-1-1998 contending that the impugned order of dismissal of the petitioner passed by the respondents are the result of the acts of unfair labour practice on the part of the employers and are the result of the acts of unfair labour practice on the part of the employers as provided under section 15 of the Industrial Relations Ordinance, 1969 only as a measure of victimization against the petitioner for his lawful trade union activities with a prayer to declare the same to be unlawful mala fide and set aside the same with consequential relief of reinstatement of the services of the petitioner with all back benefits.
2. The learned counsel for the petitioner contended that the petitioner is the elected General Secretary of Officers Union of Muslim Commercial Bank Limited of Pakistan an industrywise registered trade union of workman designated as officer Grades II and III in the establishment of the respondents by the Registrar of Industrywise Trade Unions duly certified as Collective Bargaining Agent in the year 1996 and since the petitioner being an active and principle office holder of the union had to approach the respondents time to time for the redressal and settlement of the grievance of the members of the union. Hence, the respondents highly disliked and discouraged such a trade union activities of the petitioner and in the year 1997, the respondents started the acts of unfair labour practice against the main office holders of the union of the petitioner and particularly became hostile of and inimical towards the petitioner and by using intimidation, coercion started pressurising the petitioner to sever his relations from his union and also quit the office holdership of the same with threatening otherwise to be ready to face the drastic consequences even in the shape of termination of the employment of the petitioner with one pretext or another. The learned counsel further contended that in the year 1997, the respondents as a measure of victimization, transferred the main office holders of the union against which they filed a Petition bearing No,4-A (403) of 1997-L before this commission for restraining the respondents from the commission of further acts of unfair labour practice and in such a circumstances the respondents get the petitioner involved in a baseless disciplinary case and served upon him a charge-sheet dated 6-10-1997 based upon a concocted and flimsy charge of misconduct against the petitioner with the proposed ever disciplinary action against him, against which the petitioner immediately filed a Petition bearing No,4-A (440) and (544) of 1997 before this commission with the prayer for restraining the respondents from the commission of further acts of unfair labour practice and this commission vide impugned order dated 17-10-1997 allowed respondents to hold inquiry but restrained from passing any final order adverse to the petitioner.
The learned counsel further contended that thereafter the respondents acting mala fide, without holding a proper inquiry and without providing a fair opportunity of defence to the petitioner acting in a very high-handed manner passed the impugned order of dismissal of the petitioner from his employment dated 22-1-1998 and the petitioner immediately moved before this commission against the impugned order with application for ad. Interim relief whereby in the instant case, this commission as an ad interim relief to the petitioner vide order dated 12-2-1998, held in abeyance the operation of the impugned order which was assailed -by the respondents before Honourable High Court but the Honourable High Court keeping in view the excessiveness and high-handedness on the part of the respondents declined the interference for the disposal of the case in hand on merits by this bench of the commission. The learned counsel forcibly contended that the order of dismissal dated 22-1-1998 of the petitioner is only the result of the acts of unfair labour practice on the part of the respondents for the purpose of ousting the petitioner from the continuation of his due right of participation in the trade union activities and only as a punishment against him for his trade union activities and prayed for setting aside the impugned order and also for initiating prosecution against the respondents on the commission of the clear acts of unfair labour practice as provided under the statute.
3. On the other hand, through written statement, the respondents at the very outset objected the very maintainability of the petition before this bench of the commission raising certain preliminary objections. Learned counsel for the respondents contended that the petition is barred by the doctrine of re sub judice falling under section 10 of the C.P.C. The respondents contended that there existed no case of unfair labour practice and the impugned order was only the result of disciplinary action against the petitioner. The respondents also denied the office holdership of the petitioner or any sort of relation of the petitioner with the trade union contending that after dismissal, the petitioner ceased to be a workman under Industrial Relations Ordinance, 1969 and cannot maintain any petition under the said Ordinance before this Commission, the respondent's further resisted the case of the petitioner for want of service of grievance notice under section 25-A of the Industrial Relations Ordinance, 1969 and forcefully contended that the petitioner being officer Grade II fall outside the category of workman receiving higher salaries exceeding the limit provided under section 2(XXVIII) of the Industrial Relations Ordinance, 1969 with the assertion that the case of the petitioner is not maintainable with this bench of the commission. The respondents vehemently contended that the order of dismissal of the petitioner was 'only the result of disciplinary action against him under section 27(b) of the Banking Companies Ordinance and the supply of inquiry report, issuance of second show-cause notice and offering opportunity of personal hearing is not a requirement of law and no unfair labour practice had been committed by the respondents praying the dismissal of the petition with heavy cost.
4. Since the question of unfair labour practice is a mixed question of law and facts which required to be-decided on the basis of the evidence of the parties, as such evidence of the parties were called for the petitioner himself appeared in witness-box as well as produced in evidence Mr. Tariq.
Mahmood and Mr. Kifayatullah as P.Ws.I. And 2 respectively who were cross-examined at length by the learned counsel for the respondents. P.W.I. Mr. Tariq Mehmood deposed that he was posted in M.C.B. At Chowk Yadgar on 4-10-1997 wherein the petitioner was also posted and was marking his attendance and petitioner was working as General Secretary of M.C.B. Officers and Staff Union. He also categorically stated that attendance register was signed by him (Tariq Mehmood) and the petitioner never interfered in the working of the establishment of the respondents on 4-10-1997 and the allegations made against the petitioner in the charge-sheet relating to alleged even dated 4- 10-1997 was baseless and afterthought only to victimize the petitioner for his trade union activities.
P.W.2 asserted that the allegations levelled by the respondent against the petitioner relating to alleged event of 4-10-1997 were untrue. He also controverted the suggestion that the attendance register was snatched by the petitioner and the petitioner threatened the Chief Manager as alleged in the charge-sheet. The petitioner was cross-examined by -the learned counsel for the respondent wherein the petitioner affirmed the contents of his petition as well as affidavit filed by him stating that he had an unblemished record of service in Muslim Commercial Bank for 20 years.
He was promoted as officer Grade III and there Grade II and his union is a registered Industrial.
Trade Union of workman and he though designated as officer but only performed the clerical job having no managerial or supervisory duties. Mr. Iqbal Javaid Mr. Iftikhar Saeed and Mr. Muazaulah Khan appeared as respondents witness. Mr. Ifitikhar Saeed who claimed to be complainant from the respondent's side admitted that he never recorded his statement before the Inquiry Officer in the proceedings against the petitioner. Mr. Iqbal Javaid R.W.I during the cross-examination conceded that he is not competent Authority of the petitioner and he was neither a complainant nor participated in the domestic inquiry on the basis of which, the petitioner has been ordered to be dismissed from service. On ,suggestion of the counsel for the petitioner R.W.I. Admitted that petitioner was not holding managerial, administrative or hire or fire powers and deposed that he was not an eye-witness of alleged event dated 4-10-1997.
5. I have heard the learned contestants. I have also scaned the record and after hearing both the parties at length, perusal of the record and documents and also keeping in view the evidence of the parties I am of the view that there arose four points which require deep consideration for the final determination of the controversy in hand:---
(i) Whether the petition is barred by the doctrine of res-sub judice under section 10 of the C.P.C. In view of the earlier petition of the Petition bearing No,4-A(440) of 1997 and writ petition of the Petition bearing No,1879 of 1997 with the Peshawar High Court?
(ii) Whether the petitioner while promoted in category of officer Grades III and II with higher salaries ceased to be a workman under I.R.O., 1969 or had the right to remain the category of workman and to become a member of officer of a trade union of workman and whether after dismissal a workman disentitle for any remedy under I.R.O.
1969.?
(iii) Whether the charge-sheet dated 6-10-1997 served upon to the petitioner by the respondent based upon the alleged event of misconduct is the result of the mala tide acts of unfair labour practice on the part of the employers as provided under section 15 of the Industrial Relations Ordinance, 1969 and the impugned order of dismissal of the petitioner dated 22-1-1998 is the outcome of only alleged victimization of the petitioner in the hands of the respondents for his trade union activities?
(iv) Whether the supply of inquiry report, issuance of second show-cause notice and the opportunity of personal hearing while taking the disciplinary action against the employee is not a requirement of law and whether the case of the petitioner fall within the ambit of the provisions of Industrial Relations Ordinance, 1969 and the petitioner is entitled for any relief from the bench of this Commission as provided under Industrial Relations Ordinance, 1969?
6. As regard the above first point, it is clear beyond any shadow of doubt that the provisions of section 10 of the C.P.C. Does not attract in the case of the petitioner. As the impugned order of dismissal of the petitioner dated 22-1-1998 was neither challenged by the petitioner before this bench of the commission earlier nor the same was challenged by the petitioner in the Honourable High Court as alleged and contended by the respondents. Since the petitioner remained continuously victim of the acts of unfair labour practice in the hands of the respondents and thus, in the year 1997 the union of the petitioner challenged the victimization of transfer and thereafter the petitioner challenged the show-cause notice dated 6-10-1997 vide Case No,4-A (440) of 1997 with the prayer for restraining the respondents from the commission of further acts of unfair labour practice and similarly in the year 1997 the petitioner filed a Writ Petition bearing No,1879 of 1997 with the Peshawar High Court against the excessive and high-handedness on the part of the respondents with the apprehension of expected injury to the employment of the petitioner but after the impugned order of dismissal dated .22-1-1999, the petitioner only invoked the jurisdiction of this commission against the impugned order and against the said cause of action of the petitioner, no case of the petitioner is pending adjudication before any Court. Hence the contention raised by the respondents has no force.
7. I may now deal with the second point whether the petitioner while promoted in category of Officer Grades III and II with higher salaries ceased to be a workman under. I.R.O., 1969 or had the right to remain in the category of workman and to become a member and officer of a trade union of workman and whether after dismissal a workman disentitled for any relief under I.R.O.
1969. Admittedly the petitioner is serving the establishment of the respondents in the Category of Officer Grade II but through evidence the respondents have miserably failed to substantiates to prove any managerial or supervisory powers and authority of the petitioner. By mere change of designation no change occurred in the duties and working of the petitioner and he is still performing the clerical duties and it is established law that the real test whether a person is a workman or not does not depends upon designation or salary but only depends upon the nature of duties and such a controversy has already been resolved by the superior Courts of justice whereby the Honourable Superior Courts vide reported judgments placed in 1979 SCMR 304, 1988 SCMR 1664, 1990 PLC 142, 1992 SCMR 1891 1993 SCMR 672, 1999 PLC 297 and 302 as well as 1999 SCMR 157 has held that the officer Grades III and II serving in Banks are held to be a workman. The petitioner had no managerial or administrative function to perform as officer and was only symbolically known as an officer of the bank, without having any powers of an officer as was known or understood in common parlance. The union of the petitioner has a separate collective bargaining Union of workman known as officer Grades II and III has been registered with the registrar of trade unions wherein the petitioner is the elected General Secretary of the said union. Under law the petitioner has got the lawful right to remain the member and officer of the union of workman and 1 find no force in contention contention of the respondent. Moreover, I also find no merits-in the contention of the learned counsel for the respondents . That after the dismissal a workman ceased to be for any relief under I.R.O. 1969 as section 2(XXVIII) read with section 220-B(3)(a) provides the petitioner the right of relief as a workman against the dismissal consequent upon the facts of unfair labour practice on the part of the employers.
8. Now I may advert to the point that whether the charge-sheet dated 6-10-1997 and the impugned order of dismissal dated 22-1-1998 passed by the respondents is the outcome of only alleged victimization of the petitioner in the hands of the respondents for his trade union activities or otherwise. From the perusal of the record and evidence of the parties it is an established fact that no alleged misconduct ever committed by the petitioner and the event mentioned in the charge- sheet dated 6-10-1997 is a concocted story which the respondents have miserably failed to prove.
Mr. Iftikhar Saeed a witness of the respondents who claimed to be the complainant from the respondents side admitted that he never recorded his statement Enquiry Officer in the proceedings against the petitioner on the basis of which the impugned order of dismissal was passed by the respondents. From the perusal of the finding of the enquiry report of Mr. Muzullah Khan who also appeared as respondent witness had appeared that the Enquiry Officer had given his finding the last para. Of the finding is reporduced as under: "However, so far as abusage with the Chief Manager by the accused is concerned, this could not be proved by the management sufficiently. The report is submitted for perusal and further necessary action.'
9. No doubt, the allegation levelled against the petitioner in the charge sheet on the basis of which the impugned order of dismissal was passed even also could not be proved by the domestic inquiry but even then a drastic action of dismissal of the petitioner was taken against him without providing him any opportunity of defence. Obviously, the petitioner was the elected General Secretary of his union and in the year 1997 he remained under continuous threatening by the respondents for the purpose of getting him agreed to discontinue his relations from the trade union activities and in such a circumstances, it is a fact on record that office holders of the union of the petitioner were got transferred by the respondent at far off places and when the petitioner being representative of the workers invoked the jurisdiction of-this commission against the transfer of main office holders of the union, the respondents bent upon worst enmity against him and stated the acts of victimization and decided to punish him for his lawful trade union activities and served upon to him charge-sheet dated 6-10-1997 based upon flimsy charges and thereafter without providing him the copy of the enquiry report, show-cause notice or even the right of personal hearing ordered his disthissal from employment through impugned order dated 22-1- 1998 even during the pendency of the earlier case of the petitioner wherein the petitioner had already apprehended such an excessive order by the respondents to injurs his employment as a measure of unfair labour practice. I am of the considered view that the case of the petitioner rightly fall within the ambit of section 15 of the I.R.O., 1969 and streak is felt and the dismissal of the petitioner is E only the outcome of mala fide and intentional victimization of the petitioner in the hands of the respondents just for nothing but only as a measure of unfair labour practice against him.
10. Now lastly adverting to the third point, I find no force in the contention of the respondents that the provisions of copy of the enquiry report, issuance of second show-cause notice and the opportunity of personal hearing to the petitioner before passing the impugned order is not a requirement of law. Such a contention raised by the respondents in itself proves the mala fide, excessiveness, high-handedness and the clear acts of unfair labour practice on the part of the respondents. It is a settled law as has been held by the superior Courts of justice while reported in 1990 SCMR 1701, 1991 PLC (C.S.) 706, 1987 SCMR 1562, 1992 PLC (C.S) 1185 and 1992 PLC (C.S) 678 that the accused must be given an opportunity of final show-cause notice alongwith findings of the enquiry report with a proposed specific punishment to enable him to defend his case against the prOposed punishment and where such a basic requirement of law is not fulfilled the impugned order is liable to be struck down being void ab initio. Moreover, the superior Courts of justice have repeatedly held place in 1993 SCMR 122, 1997 PLC (C.S) 1146 and 1998 SCMR 91 that right of audi alterm partem is the basic requirement of law for a citizen and no adverse order against an employee can be passed without providing him the right of personal hearing by punishing authority and during the course of proceedings, the respondents have acknowledged that no such mandatory requirement of law has been fulfilled by them before passing the impugned order of dismissal of the petitioner. All this shows that the impugned order has been passed by the respondents in a haphazared manner in violation of the settled norms of justice only to oust the petitioner from his employment and right of workmanship and his participation in the trade union activities. I also find on force in the contention of the learned counsel for the respondents that for G invoking the jurisdiction of this commission under section 22-A(8)(g) of the I.R.O., 1969, the requirement of prior notice under section 25-A was to be fulfilled by the petitioner. Under the law laid down by the Honourable Karachi High Court while reported judgment placed in PLJ 1980 Karachi 376 as well as a judgment of the Full Bench of this Commission reported in 1987 PLC 298 it has been held that failure to invoke the remedy under section 25-A is not a bar to application before the NIRC under section 22- A(8)(g) of the I.R.O., 1969. Remedy before the commission is independent and additional remedy for dealing with the cases of dismissal by way of victimization on account of trade union activities. In such a circumstances, the case of the petitioner clearly fall within the ambit of the provisions of I.R.O. 1969 and the petitioner is entitled for relief from the bench of this commission against his victimization in the hands of the respondents, for his trade union activities.
11. An anxious consideration of the prose and cons of the contentions raised on behalf of the contestants and in the light of the pleadings and the record available on the file lead me to believe that the impugned order of dismissal of the petitioner from his employment dated 22-1-1998 is only the result of the mala fide of the respondents for the purpose of ousting the petitioner from his right of workmanship and office holdership of the union and is only the result of intentional and deliberate victimization of the petitioner in the hands of the respondents only as a measure of unfair labour practice against him. I accept this petition and declare the impugned order of dismissal of the petitioner dated 22-1-1998 to be mala fide, excessive, unlawful, void ab initio and set aside the same with the direction to the respondents to reinstate the services of the petitioner with all back benefits and I further restrained the respondents from the commission of the acts of unfair labour practice against the petitioner.
' There shall be no order as to the cost. The file be consigned to record after completion of necessary formalities.