' Respondent No,2, an employee of petitioner No,1, was charge-sheeted and proceeded against and ultimately removed from service on 20-1-1986. A departmental appeal filed by respondent No,2 against the said order was rejected on 24-6-1986. On 16-1-1996 respondent No,2 filed an application under section 22-A(8)(g) of I.R.O. 1969, before respondent No,1. In the application it was stated that the respondent No,2 was Vice-President of the Employees Union in District Sheikhupura; that the leader of the rival union started pressing petitioner No,1 to victimize respondent No,2.
Resultantly he was suspended vide, order, dated 13-3-1984, was served with a charge-sheet on 18- 10-1985 after 19 months of unjustified suspension; a case F.I.R. No,410 of 1985 was also registered against respondent No,2 on 10-11-1985; that he was dismissed from service vide order, dated 20-1- 1986; the inquiry leading to the said dismissal was stated to be illegal; that on 15-4-1986 he filed a departmental appeal which was rejected on 24-6-1986; that the respondent No,2 was acquitted by the Special Court (Offences in Banks), Lahore vide judgment dated 8-10-1988. With these averments it was prayed that the order, dated 20-1-1986 be set aside being mala fide and illegal and without jurisdiction and he be ordered to be reinstated with full back benefits and the petitioners be restrained from committing further unfair labour practice.
2. The petitioners filed a written reply. It was denied that the respondent No,2 was ever victimised due to his union activities. According to the petitioners he was involved in a case of misappropriation in which inquiry was held and he was found guilty and thus, was dealt with in accordance with law. Respondent No,1 after receipt of the said reply proceeded to hear the arguments and vide order, dated 27-11-1996 announced 22-12-1996 directed reinstatement of respondent No,2 in service with full back benefits from the date of termination.
3. Learned counsel for the petitioners contends that respondent No,1 had no jurisdiction to pass the said impugned order. According to the learned counsel it was a case of dismissal from service for reasons stated and after Conducting inquiry and issuing a show-cause notice and in the absence of any proof of unfair labour practice and conviction of the petitioners on the said basis, respondent No,1 could not have directed the reinstatement of respondent No,2 in service. Learned counsel for the respondent No,2, on the other hand, argues that this writ petition stands abated after insertion of section 2-A in the Service Tribunals Act, 1973. Relies on the cases of Civil Aviation Authority and 3 others v. Izhar Ahmad and 144 others (2001 SCMR 328), Messrs Sui Southern Gas Company Ltd., and another v. Khawaja Muhammad Munir and another (2000 SCMR 702); Syed Aftab Ahmed and others v. K.E.S.C. And others (1999 SCMR 197), United Bank Limited through its President U.B.L. Head Office Chundrigar Road, Karachi v. Shahmim Ahmad Khan and 42 others (1999 PLC (C.S.) 1032 = PLD 1999 SC 990) and Federation of Pakistan v. Muhammad Siddiq (PLD 1981 SC 249). Arguing on the merits, states that the respondent No,1 had the jurisdiction even to entertain the plea of respondent No,2 as an individual grievance and notwithstanding the proof of unfair labour practice having been committed, could have reinstated respondent No,2. Further argues that the writ petition is not maintainable in view of the alternate remedy available under section 22-D of the I.R.O., 1969.
4. I have gone through the copies of the documents appended with his writ petition. I have already referred to the respective pleadings of the parties before the learned respondent No,
1. I have examined his impugned judgment announced after hearing the arguments of the parties upon completion of pleadings, I find that after reproducing the pleadings of the parties in para. 1 and 2 of the impugned judgment, as read by him, he proceeded to discuss the matter in para.3 of his impugned judgment. He discussed the merits of the order of dismissal with reference to the proceedings culminating in the same and found on merits, with reference to the order of acquittal recorded by the said Court, that the order of dismissal is illegal. Thereafter, abruptly he states that it stands proved positively that the dismissal order of the petitioner (respondent No,2) was passed for his trade union activities and was a measure of unfair labour practice. Now in the entire discussion contained in para. 3 there is not a word as to what were those union activities and what is material to prove that the present petitioners are guilty of unfair labour practice.
5. Section 15 of the I.R.O., 1969, defines the unfair labour practice on the part of employers. Clause
(d) of subsection (1) of section 15 is relevant and is reproduced here:--
(d) dismiss, discharges, remove from employment (or transfer) or threaten to dismiss, discharge or remove from employment (or transfer) a workman or injure or threaten to injure him in respect of his employment by reason that the workman:--
(i) is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union;
(ii) participates in the promotion formation or activities of a trade union; Section 22-A(8)(a) authorises respondent No,1 to deal with the cases of unfair labour practice specified in section 15 on the part of employers or persons acting on their behalf whether committed individually or collectively. A bare reading of the said section 15(1) (d) and the said section 22-A(8)(g) of I.R.O., 1969 would show that respondent No,1 has jurisdiction only to deal with the cases of unfair labour practice, in the facts and circumstances of the present case, where an employee alleges that he had been dismissed for the reasons stated in section 15(1)(d) i,e, when he has been dismissed for reasons that he participates in the activities of a trade union. There is no material on record and there is no finding recorded by the learned respondent No,1 in accordance with law on the basis of any evidence or material that the dismissal of respondent No,2 was for reasons stated in the said section 15 of I.R.O., 1969.
6. Learned counsel for respondent No,2, however, argues that the impugned order of learned respondent No,1 can be justified with reference to section 22-B(3)(a) of I.R.O., 1969. Now this provision of law relates to the constitution of the Bench of Commission and their functions/powers, Now a A according to the learned counsel the said provisions is to be read to mean that respondent No,1 can entertain and redress individual grievance of a worker. The arguments loses sight.Of two aspects. First, the use of word "or" between the cases based on allegation of unfair labour practice and those for redress of individual grievance, to my mind has been used as disjunctive. The second aspect is that it is not the case of respondent No,2 that he had gone to respondent No,1 for redress of his individual grievance. On the other hand, he had gone there with a case alleging his dismissal being result of or for the reason of unfair labour practice. Nothing, therefore, turns on the said argument of the learned counsel.
7. I may here refer to the case of Iftikhar Ahmad and others v. President, National Bank of Pakistan and others (PLD 1988 SC 53) relied upon by the learned counsel for the petitioner dealing with an employee of the petitioners Bank wherein it has been observed by the Supreme Court of Pakistan at page 66 of the report in para. 14 thereof as follows:-- "14. It will be noticed that the governing words in the clause are 'in relation to cases based on allegations of unfair labour practices brought before the Commission.' It will, therefore, appear that the cases which the Benches are empowered to hear under: the clause must have an element of unfair labour practices in them; it does not encompass cases where no allegation of unfair Labour practices is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instances of unfair labour practices on the part of the employers as well as workmen. It is, therefore, not right to construe the clause in question as conferring a general jurisdiction upon the Benches entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices.
Apart from that, as already mentioned above section 22-A(12) specifically recognises the competence of Labour Court, albeit subject to some qualifications, to entertain petitions arising out of unfair labour practices. It is, therefore, not right to say that section 22-B(3)(a) confers exclusive jurisdiction on the Benches of the National Industrial Relations Commission to entertain the grievance petitions of the Bank employees."
8. Coming to the said contention of the learned counsel for respondent No,2 based on section 2-A of the Service Tribunal Act, 1973, there is no cavil with the proposition propounded in the judgments.
Relied upon by the learned counsel that the said section 2-A has the effect of abating pending proceedings in relation to the terms and conditions of the employees of the Corporations covered by the said provision of law. However, the present is not a case pertaining to the terms and conditions of service of respondent No,2. It is a case where he has alleged commission of unfair labour practice against his employers and the respondent No,1 has accordingly passed the impugned order which in its turn is impugned in the present writ petition. There is thus no question of abatement of this writ petition in view of the said provisions of the Service Tribunals Act, 1973.
9, Learned counsel for respondent No,2, then with reference to section 15(1)(c) of I.R.O., 1969 tried to support the impugned order with the argument that his client has been discriminated against inasmuch as despite his acquittal from the said Court he was not reinstated in service. The argument again holds little water. In the first instance the said sub-clause (c) of subsection (I) of section 15 of I.R.O., 1969, is again subject to the ;ondition that the discrimination has been made for reasons of trade union activities of the employees. Secondly, the argument of the learned counsel, in its turn based on the reasoning of the learned respondent No,1 for finding respondent to have been wrongly dismissed as he had been acquitted by the Court, is also fallacious. It is well-settled that acquittal in a criminal case neither constitute a bar nOr is a clog on the imposition of departmental penalty. Reference be made to the case of Inspector-General of Police, Punjab, Lahore and others v. Muhammad Tariq (2001 SCMR 789).
10. This leaves the matter or non-availing of alternate remedy under section 22-A of I.R.O., 1969. I have already found above that the impugned order of respondent No,1 suffers from lack of jurisdiction and the illegality as apparent on the face_ of the very impugned judgment. In this view of the matter the said non-availing or the said remedy would not constitute a bar to the present petition. Reference be made to the case of Government of the Punjab through Collector, Faisalabad and another v. Hudabia Textiles Mills, Faisalabad through Chairman and 4 others (2001 SCMR 209).
11. In view of the above discussion the impugned order, dated 27-11-1996 (announced on 22-12- 1996) of respondent No,1 is declared to be without lawful authority. The writ petition is accordingly allowed and the said impugned order is set aside. No order as to costs.