' The applicant has filed present petition under section 22-A(8)(g) of the I.R.O., 1969 read with N.I.R.C.
(P&F) Regulations, 1973 whereby he has challenged his suspension order and order of the respondents appointing the Enquiry Officer to probe the allegation of misconduct.
2. It is the case of the applicant that he is the General Secretary of SGS Workers Front CBA in the establishment of respondents and that since 1994 the respondents are pressurising the office- bearers and workers to refrain from trade union activities. It is alleged that CBA Union submitted charter of demands under law but the respondents refused to resolve the dispute. The applicant then served strike notice but the conciliation proceedings, which were failed due to attitude of the respondents, therefore, the application was filed under section 32(1-A) of the I.R.O., 1969 in the Fifth Sindh Labour Court, Karachi which is still pending adjudication. It is further alleged that the respondents are against the formation of the trade union in their Organization and submitted application under section 34 of the I.R.O., 1969 for cancellation of the registration of SGS Workers Front which is still pending. It is further alleged that the respondents attempted to victimise the office-bearers and other members of union, therefore, case of unfair labour practice was filed which is pending before the Commission which was not liked by the respondents, therefore, respondents Nos.2 to 4 insisted the applicant and other office-bearers of the union to withdraw the case from the Labour Court and from the Commission. It is also alleged that applicant was on leave on 22-5-2000, due to sickness, when he attended his duty on 23-5-2000 as per rule he submitted his leave application for 22-5-2000 which was granted but show-cause notice was issued to him which was replied by him but the respondents with mala fide intention suspended the applicant with order of inquiry without any act of misconduct but due to his bona fide trade union activities, the respondents are bent upon to remove him and that he has not committed any misconduct, therefore, show-cause notice followed by inquiry and suspension order is an act of unfair labour practice, which may be declared as an act of unfair labour practice.
3. The respondent filed their comments and reply to the stay application wherein they have denied that the applicant is being vitimised due to his trade union activities or show-cause notice followed by inquiry or suspension order is an act of unfair labour practice due to his trade union activities.
Their plea is that on 22-5-2000 the applicant was not ill but he attended the Commission alongwith other workers thereafter visited the office and came with banners. He gave leave application on the ground of his illness and such ground was not only false but was conceived with dishonest intentions. He is also in the habit of maligning the management by writing uncalled for letters to the Head Office of the respondent No,1 . Consequently show cause notice was issued to the applicant which was replied by him which was found unsatisfactory and the management in exercise of their right under Standing Order 15 could conduct inquiry in relation to his misconduct and was placed under suspension. They have further taken the plea that the respondents have not committed any act of unfair labour practice nor they intended to commit in future therefore, the application is misconceived. They have further taken the plea that in the inquiry the applicant has been found guilty and that they have moved application under section 47 of the I.R.O., 1969 before the Fifth Sindh Labour Court, Karachi for permission to dismiss the applicant from the service.
4. I have heard Mr. M.A.K. Azmati, learned counsel for the applicant and Mr. M.L. Shahani, learned counsel for the respondents.
5. It is contended by the learned counsel for the applicant that show-cause notice followed by inquiry and suspension order is due to trade union activities of the applicant who is General Secretary of SGS Workers Front which amounts to an act of unfair labour practice and victimization at the hands of respondents as such the applicant has made out a prima facie case for grant of relief under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973.
6. On the other hand the learned counsel for the respondents has argued that the action is being taken against the applicant for gross misconduct as the applicant on 22-5-2000 remained absent and on 23-5-2000, he moved an application inter alia stating that he was not well-therefore, he could not attend the office on 22-5-2000 but in fact on the said date the applicant was present in N.I.R.C. Alongwith other staff, therefore, his ground that he was sick was false and that he has been writing malicious letters to SGS, Regional Office. Therefore, show-cause notice was given to him which was duly replied by him and it was not found satisfactory and Enquiry Officer was appointed who has found him guilty for misconduct and the respondent management had decided to dismiss him from service and since industrial dispute is pending before the Labour Court, they have moved the Labour Court for permission to dismiss the service of the applicant.
6-A. The perusal of the record clearly shows that show-cause notice was given to the applicant on the charge of misconduct which was replied by him and thereafter Enquiry Officer was appointed and the applicant was placed under suspension and the Enquiry Officer has now held the applicant guilty of misconduct and the respondents' establishment has moved Labour Court under section 47 of the I.R.O., 1969. In that case the act of the respondents cannot be termed to be an act of unfair labour practice. Standing Order 15 clearly authorises the employer to hold the inquiry and to take action against the appellant for the act of misconduct after giving him show-cause notice and holding proper inquiry which has been done. Merely because the applicant is General Secretary of SGS Workers Front is not sufficient to hold that the proceedings against the petitioner are due to his trade union activities. The employer is well within his rights to take any action for the misconduct and the N.I.R.C. Has no power to sit as an appellate forum and to examine the inquiry proceedings. Moreover, no specific instance of unfair labour practice has been mentioned by the applicant in his application. Mere allegation that he is General Secretary of SGS Workers Front is not sufficient that proposed action by the respondent is an act of unfair labour practice.
7. Admittedly the industrial dispute is pending before the learned Labour Court and applicant being General Secretary of the SGS Workers Front cannot be removed without prior permission of the Labour Court. The respondents have already moved the Labour Court and the action will be taken on the basis of decision of the Labour Court on the said application.
' In the circumstances no case of unfair labour practice is made out. However, I must observe that the respondents will not remove the applicant from service on the basis of show-cause notice, charge-sheet and on the report of Enquiry Officer without permission of the Labour Court where application under section 47 of the I.R.O. Is pending.
' In the circumstances the application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 is dismissed. Consequently the main petition is also misconceived and is not maintainable and the same is also dismissed.
' Announced in open Court.
' Given under my hand and seal of the Commission, this 26th day of August, 2000.