' ZIA MAHMOOD MIRZA (CHAIRMAN).---This appeal under section 22-D of I.R.O. Is directed against the order of the Single Member, Karachi Bench, dated 18-6-1999 dismissing appellant's Petition No,4-A(305) of 1999-K alongwith their stay application.
2. The appellants who were the employees of the Postal Department and claimed to be the members and office-bearers of National Organization of Postal Employees (NOPE) brought the afore-referred petition against the two respondents (Post Master General, Southern Sindh Circle, Karachi and City Superintendent of Post Office District Central, Karachi) who, it was alleged, had involved the appellants in three criminal cases registered with the police, one after the other, on false and fabricated allegations. Two cases were got registered against all the appellants on 17-8- 1996 and 30-8-1996, while the third F.I.R. No,12 of 1996 was lodged with the police on 4-9-1996 alleging fraud and forgery committed in Franchise Post Office-III by the appellants Nos.1 and 4, and the allottee of that Post Office. It was further alleged in the petition that the respondent authorities with a view to dismiss the appellants from service so as to punish them for their lawful trade union activities issued them show-cause notices for misconduct based on false allegations. Grievance was made by the appellants in their petition that despite their written requests, they were not supplied copies of the relevant record which they needed for filing reply to the show-cause notices.
The appellants also expressed apprehension that the respondents were intending to dismiss them without holding any enquiry, on these allegations, directions were sought to be issued to the respondents "to withdraw from the acts of unfair labour practice initiated by them", to withdraw the proceedings initiated against the appellants and refrain from finalizing any punitive action against them and to submit the findings to the Commission.
' Alongwith the main petition, an application was also filed under Regulation 32(2)(c) of N.I.R.C.
(P&F) Regulations, 1973 read with Order 39, rules 1 and 3, C.P.C. For the grant of interim prohibitory order.
3. The appellants' petition was placed before the learned Single Member who vide order, dated 16- 11-1996 called for the comments from the respondents and directed that in the meantime, the appellants shall not be dismissed from service. The respondents were, however, allowed to proceed with the process of enquiry with the direction that they shall submit the enquiry proceedings before him. The respondents filed the comments and counter-affidavit denying all the allegations of unfair labour practice levelled against them in the petition and the appellants filed rejoinder thereto. The case remained pending before the learned Single Member for about three years and has been decided by him vide the impugned order, dated 18-6-1999 whereby the appellants' petition together with the stay application has been dismissed and the interim prohibitory order re-called.
4. We have heard the learned counsel for the appellants and have also perused the impugned order and other material available on the record. It is an admitted position that the appellants were charge-sheeted for misappropriation/embezzlement of Government money to the tune of Rs,24,01,643.50 which allegation was also the subject-matter of F.I.R. No,12 of 1996, dated 4-9-1996, registered under sections 409, 420, 468, 471, 477-A and 109, P.P.C. Read with section 5(2) of P.C.A., 1947 against Adil Khan and Shahbaz Khan appellants Nos.1 and 4 and one Rafi Ahmad Khan, proprietor/allottee of Franchise Post Office No,III of Tariq Road, Karachi. It is also on record that two other criminal cases were registered against all the appellants, one vide F.I.R. No,178 of 1996, dated 12-8-1996 (for manhandling Mr. Muhammad Farooq. Director, Franchise PMG Office, Karachi) and the other through F.I.R. No, 199 of 1996, dated 30-8-1996 alleging unauthorised removal of record by the appellants and they were also stated to be facing trial in these cases. The appellants were also departmentally proceeded against for misconduct and corruption. Domestic enquiry was held against them which, it is stated, they did not join and were found guilty by the Enquiry Officer. Final action was, however, not taken against them in view of interim restraint order issued by the Single Member. The impugned order shows that the learned Member after hearing the counsel for the parties and going through the pleadings and other record came to the conclusion that there was nothing on the record to show that the proceedings were initiated against the appellants because of their trade union activities. The learned Member took note of the fact that the appellants were charged with misappropriation/embezzlement of Government money to the tune of Rs,24,01,643.50 and observed that unless the case was investigated, the management could not reach any conclusion regarding the said charge. The learned Member relying upon a Full Bench Judgment of this Commission in the case of National Motors reported as 1987 PLC 547 observed that it is the legal right of the management to issue the charge-sheet and proceed against its employee on the charge of misconduct. Proceedings on these premises, the learned Member dismissed the appellants' petition as also the stay application by his order, dated 18-9-1996 impugned in the present appeal.
5. In view of the factual position afore-noted which the learned counsel for the appellants has not controverted, no legitimate exception can be taken to the impugned order and premises on which it is based. As rightly observed by the learned Member, it is the legal right of the employer to initiate disciplinary proceedings against his employee on a charge of misconduct. In fact, issuance of charge-sheet and holding of an enquiry to find out whether the charge levelled against the delinquent employee is correct or not is statutory requirement. In our view, the employer having initiated the disciplinary proceedings can take them to the logical end and the employee cannot be permitted to frustrate/circumvent such proceedings by simply pleading victimization on account of trade union activities unless he places on record sufficient material to show that the impugned action being taken against him is motivated by his lawful and legitimate trade union activities. In this view of the matter coupled with the grave nature of the misconduct alleged against the appellants their petition filed before this Commission to challenge the disciplinary proceedings initiated against them has been rightly dismissed by the Single Member.
' Apart from what has been said above, this appeal even otherwise is rendered infructuous as it is stated by the appellants though by way of grievance that immediately after the dismissal of the case/passing of the impugned order, they were dismissed from service vide order, dated 19-6- 1999. The appellants have further stated in para. 8 of their appeal that they intend to challenge their dismissal before the Federal Service Tribunal and "therefore, no grounds on merits against the said dismissal order are being contended/pleaded in this appeal".
' For the reasons aforementioned, this appeal merits dismissal and the same is hereby dismissed with the observation that the appellants may seek/press their remedy against their dismissal from service before the appropriate forum.
Appeal dismissed.
2001 P.L C 193 [Sindh Labour Appellate Tribunal] Before Munawar Ali Khan, Chairman ANWAR MUHAMMAD versus PAKISTAN RAILWAYS through Divisional Superintendent, Karachi Revision Application No,KAR-122 of 1999, decided on 20th April, 2000.
Industrial Relations Ordinance. (XXIII of 1969)- ----Ss. 25-A & 51---Grievance petition---Back benefits---Entitlement--Grievance; petition by employee was allowed by Labour Court and employee was given not only seniority and promotion, but was granted back benefits---Employer filed appeal against judgment of Labour Court--- During pendency of appeal, employee gave statement to the effect that if he was given promotion he would forego his, back benefits and in view of said statement employee was promoted as desired by him and employer withdrew its appeal pending before Labour Appellate Tribunal--- After withdrawal of appeal by employer, employee once again approached Labour Court. For determination of back benefits contending that waiver under compulsion of back benefits was made by him which could not stand in his way for.Claiming back benefits---Employee had failed to prove that he had waived his right to get back benefits under compulsion whereas it had fully been proved that he voluntarily waived his right to get back benefits to get promotion as early as possible---Once employee had foregone back benefits, he could not at his own free-will again turn round and reclaim the same---Labour Court, in circumstances, had rightly dismissed application by employee for determination of his dues, arrears of back benefits under S. 51 of Industrial Relations Ordinance, 1969. [pp. 195, 196] A, B & C 1994 PLC 1158 ref. M.A. Hassan Malik for Applicant. Latif Saghar for Respondent.
Date of hearing: 17th April, 2000.
DECISION ' This revision application has arisen from the facts which may briefly be stated as follows. To start with, the applicant filed grievance petition under section 25-A I.R.O., 1969 which was allowed and he was given not only seniority and promotion but also granted back-benefits. The respondent went in appeal against the decision of the lower Court. During the pendency of the 'appeal the applicant gave a statement before the respondents foregoing the back-benefits provided he was given promotion. In view of the statement he was promoted as desired by him and the respondents withdrew their appeal pending before this Tribunal. After withdrawal of the appeal by the respondents the applicant once again approached the Labour Court for determination of his back-benefits as his earlier waiver exercised by him could not stand in his war for claiming back- benefits.
2. The revision application was vehemently opposed by the respondents who in their written reply took a stand that since the applicant had himself foregone the back-benefits, he could not turn round and make claim for the same.
3. The learned Labour Court after considering the material on record and hearing the arguments of the learned counsel of the parties dismissed the application and hence this Revision Application against the order of dismissal passed by the learned Labour Court.
4. The sole point to be decided in this case is whether the applicant who had on his own foregone the back-benefits granted to him by the lower Court, could now riggle out from his previous stand and re-claim the back-benefits. Both the learned counsel for the parties had submitted their arguments and cited the authorities in support of their respective cases. It is not denied by the learned counsel for the applicant that the applicant had waived his right of back-benefits. This finds support from the letter written by the .Applicant Anwar Muhammad to the Divisional Personnel Officer Pakistan Railways, Karachi wherein he has clearly surrendered his arrears of back-benefits from 31-5-1992 to 3-4-1995 requesting at the same time that his promotion order be issued without back-benefits with effect from 31-5-1992. The applicant's learned counsel, however, interpreted the waiver of back-benefits by the applicant as having been made obviously under compulsion because his Promotion order was not being released. Furthermore, in view of the applicant's aforesaid waiver statement not only he got the Promotion but the appeal filed by the respondent against the main case was also withdrawn. I have given my due consideration to the contention of the applicant's learned counsel that the applicant had waived back-benefits on account of compulsion, but I am unable to persuade myself to agree with the learned counsel in this regard.
There is no evidence on record to indicate that the respondents had in any way brought undue pressure on the applicant for waiving his right to back-benefits. It is only his word that he was compelled to do so because until then he was not being given promotion by the respondents. May be issuance of his Promotion Order was delayed but that would not mean that respondents had no intention of giving him the promotion which was admittedly allowed to him by judgment of the Labour Court. If he had shown patience for some time he would have got the promotion order. It does not appeal to reason that after he was allowed the promotion by judicial decision, the respondents could run the risk of violating such decision with all legal consequences flowing against them. Even if the respondents delayed the issuance of his promotion order indefinitely, he had remedy available to him and he could have forced them by resorting to legal course. I am, therefore, convinced that the applicant was not compelled much less by the respondents to forego the right of back-benefits. It was all due to his impatience to see himself saddled in promotional post at an early date that he went to the extent of foregoing the back-benefits. The learned Labour Court, therefore, rightly rejected the arguments of the applicant's learned counsel and also did not accept the authority cited by him in support of his claim. I have also gone through the same authority reported as 1994 PLC (C.S.) 1158. The learned Labour Court has rightly held that it was on different issue i,e, estoppel. It was held in the reported case that there could be no estoppel against the statute. That is not the case here. In the present case back-benefits were actually allowed to the applicant by the learned Labour Court but he himself waived his right to such benefits in his zeal to get his promotion as early as possible. He was not only entitled by law to back-benefits but he was allowed the same by the learned lower Court, but nobody could prevent applicant from waiving his right to such benefits. As pointed out earlier no element of compulsion was involved in forcing him to waive his claim to the back-benefits but once he had foregone the said back- benefits he could not at his own free-will again turn round and re-claim the same.
' For the foregoing reasons I am of the view that the learned Labour Court had rightly dismised the application made by the applicant for determination of his dues under section 51, I.R.O. Accordingly the Revision against the said decision has no force and as such it is dismissed.