' ZIA MAHMOOD MIRZA (CHAIRMAN).---Muhammad Siddique, respondent was employed as Driller in the appellant-Company. On 3-7-1997, he was given a show-cause notice containing the following allegations:- "It has been reported that on 28-6-1997 at about 16-08 hours while the workers of. Shift 'A' were leaving the factory and cursory search was being carried out by the security staff, you were caught red-handed at Time Office Gate stealing out a PMTF component (2nd gear No,G-5) from the factory. The component was recovered from your possession, which was hanging on your chest with the help of a rope looping around your neck and hidden under your shirt."
2. The above act, it was stated, amounted to misconduct warranting disciplinary action. The respondent was, therefore, required to show cause in writing as to why disciplinary action should not be taken against him. The respondent submitted reply to the show-cause notice denying the allegations levelled against him. He was, however, suspended on 11-7-1997 for a period of four days and subsequently, a notice of enquiry was issued to him on 19-7-1997 informing him that his reply to the show-cause notice, dated 3:7-1997 was found unsatisfactory and it was decided to hold an enquiry into the charges levelled against him so as to give him another opportunity to defend himself. The respondent was accordingly directed to appear before Enquiry Officer named in the Enquiry Notice on 22-7-1997.
3. It appears that the enquiry proceedings were initiated by the Enquiry Officer and the enquiry was still in progress when the respondent approached this Commission through a Petition No,4- A(238)/97-K filed under section 22-A(8)(g) of the I.R.O., 1969 read with an application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 alleging therein that he was involved in a false case by the management of the appellant-company on account of his trade union activities.
4. It was alleged by the respondent in his petition that the appellant's Manager Personnel and the Deputy Manager (Security) intimidated and threatened the petitioner to dismiss him from the employment for taking part in agitation for acceptance of charter of demands submitted by the CBA Union or in any agitation against violation of labour laws by the appellant-company. It was further alleged by the respondent that the said two officers advised him to refrain from taking part in any sort of agitation against the appellant-company and induced him to become member of the rival union of the CBA and on his refusal to accept this unlawful demand/advice, the said two officers became his enemy and threatened him with dire consequences. It was contended by the respondent in this petition that "due to nonacceptance of unlawful and illegal threats of the officers of the respondent by the petitioner, the Deputy Manager (Security) with pre-planned action foisted the alleged recovery of gear No,G-5 of F. Tractor upon the petitioner on 26-8-1997 and lodged an F.I.R. With Police Station Sukkun Malir, Karachi under section 14, E.H.O., 1979." The respondent also complained against the behaviour of the Enquiry Officer and expressed the apprehension that "he will recommend dismissal of the petitioner in violation of the law". The respondent further alleged that he had requested the management to change the Enquiry Officer but his request was turned down. On these allegations the respondent sought a prohibitory order to be issued against the appellant-Company restraining it from dismissing him from employment and intimidating, pressurizing or threatening him to cease to be the member of the CBA Union and become member of the union of the appellant's choice. It was further prayed by the respondent that the appellant- company and its officers may be directed to refrain from committing any other 'acts of unfair labour practice and to conduct themselves in a manner calculated to avoid occurrence of unfair labour practice. The respondent-Company was also sought to be reprimanded/warned that if they conducted themselves in an improper way, it would be deemed to be in furtherance of commission of offence punishable under section 53 of the I.R.O., 1969. A direction was also sought by the respondent for the change of Enquiry Officer.
5. Respondent's petition was placed before the Single Member, Karachi Bench on 18-9-1997 who after hearing the counsel for Muhammad Siddique, petitioner before him (respondent herein) and after referring to the averments made in the petition issued notice to the present appellant requiring it to file reply in the main petition and counter-affidavit in the stay matter and in the meanwhile, the appellant was permitted to proceed with the "fair and impartial enquiry" but it was directed that it shall not pass any adverse order against the respondent till the next date of hearing.
6. The appellant-Company filed written statement as also its counter-affidavit in the stay application controverting the allegations made in the petition. Preliminary legal objections were also raised in the written statement that this Commission had no jurisdiction in the matter as the case did not involve any unfair labour practice but it was a clear case of misconduct for which departmental proceedings had been initiated in accordance with law. The jurisdiction of the Commission was also challenged on the ground that after insertion of section 2-A in the Service Tribunals Act, 1973, the respondent had become civil servant and his remedy lay before the Service Tribunal. On merits, it was denied that the respondent was active member of the union or that he took any active part in any proceedings/negotiations. It was stated that the respondent was neither an office-bearer of any union nor was he subjected to any unfair labour practice. It was pointed out in the written statement that the respondent was involved in a theft case and the criminal proceedings as also the departmental proceedings were initiated against him. The allegation was reiterated that the respondent was caught red-handed while carrying a gear component which he had concealed under his dress. An objection was taken in the written statement that a proper show-cause notice was issued to the respondent whose reply thereto was found unsatisfactory and enquiry was, therefore, ordered to be held against him but he instead of facing the enquiry approached this Commission "on false and fabricated ground just to avoid the enquiry proceedings". It was further averred in the written statement that the Inquiry Officer was an impartial senior officer. The respondent was provided full and fair opportunity to defend himself. He had participated in the inquiry proceedings, had cross-examined the prosecution witnesses produced in the enquiry and had also signed the enquiry proceedings.. His statement was also recorded and he had produced the defence witnesses. It was pointed out by the appellant in its written statement that the inquiry proceedings have been completed and the Enquiry Officer has submitted his report in which he has found the respondent guilty of the charges levelled against him. Photo copies of the enquiry report and the proceedings were appended with the written statement. A request was accordingly made by the appellant Company in the written statement that "interim order may kindly be recalled and the respondent may be permitted to take further action against respondent in accordance with law...."
7. After the appellant filed the written statement and its counter-affidavit on 28-2-1998, the case was adjourned for arguments in the stay matter. Perusal of the order-sheet shows that the case remained pending for arguments in the stay application from 28-2-1998 to 19-10-1999 and throughout this period, case was being adjourned for one reason or the other, mostly at the request of the respondent (petitioner before the. Learned Member). On 19-10-1999, however, the case was adjourned only for two days for written arguments to be filed by the respondent's counsel with the direction that in case he failed to file the same by the next date: the order shall be announced. No date was, however, fixed on 19-10-1999 nor any order passed thereafter on the order-sheet until the impugned order was passed by the learned Member on 20-11-1999 whereby he overruled the jurisdictional objection raised by the appellant on the basis of section 2-A of Service Tribunals Act, 1973 holding that the case involved the allegations of unfair labour practice, N.I.R.C. Has the jurisdiction to hear and deal with such cases in view of the decision of the Larger Bench of the Commission in the case of "Iftikhar Haider Jhatla v. Pakistan Telecommunication Company Limited'. The learned Member also overruled the appellant's objection that in cases of misconduct, it is the prerogative of the employer to take action against the employee in accordance with law and that any stay granted by the Commission amounted to restraining the ethployer from exercising its powers under the law. The learned Member took the view that under Regulation 32(2)(c) of the N.I.R.C. (Procedure and Functions) Regulations, 1973, the N.I.R.C. Is vested with the powers to take measures calculated to prevent an employer from committing an unfair labour practice.
8. With regard to the merits of the case, the learned Member relying upon the judgment of the Judicial Magistrate acquitting the respondent (it appears that in the meantime, the respondent had been acquitted by the Trial Magistrate in the criminal case) observed that the respondent had been acquitted by the Judicial Magistrate on the testimony of three out of four witnesses examined in the departmental enquiry and held that "reliance was to be placed on the testimony under oath and before a judicial Court which is an independent authority rather than without oath and before an Enquiry Officer who is an employee of the respondent-management". Proceeding on these premises, the learned Member held that since the Judicial Magistrate found the respondent "non- guilty how can he be found guilty by Enquiry Officer on the basis of the evidence of the same persons. This shows bias". It was further held by the learned Member that the allegation of the respondent that the appellant wanted to dismiss/remove him from service on account of his trade union activities also gets support from the finding of the learned Judicial Magistrate in his judgment which reads "statement of accused, made in his statement under section 342, Cr.P.C.
Finds some strength that the instant case was falsely got registered against him by the management who wanted to oust him from the union especially when the accused has rendered his services in PMTF for the long tenure of 27 years and there is no case of this type registered against him prior to this". With these findings, the learned Member not only confirmed the interim injunction/stay order earlier issued but also disposed of (allowed) the main petition "due to peculiar circumstances".
9. We have heard the learned counsel for the parties and have also gone through the record. As noted above, the learned Member while dealing with the stay matter and confirming the interim injunction also allowed the main petition. It is an admitted position that the learned Member did not record any evidence nor did he afford any opportunity to the parties to adduce evidence in support of their respective contentions. Learned counsel for the appellant contended and rightly so that the question as to whether the disciplinary proceedings were initiated against the respondent in accordance with law or as a measure of punishment for his trade union activities could only be determined on the basis of evidence to be adduced by the parties but no evidence was recorded in this case. The impugned order disposing of the main petition merits to be set aside on this ground alone. We, however, further find that the learned Member also grievously erred in deciding the whole case on the basis of judgment of the respondent's acquittal recorded by the Judicial Magistrate in the criminal case. The learned Member seems to have ignored the settled principle of law that the acquittal of an accused person in a criminal case is no bar to initiating and/or proceeding with the departmental/disciplinary proceedings against him on the charge of misconduct and in such proceedings, he can also be awarded suitable/appropriate punishment by the employer, of course, on the charge of misconduct being proved. The learned Member proceeded on wholly incorrect premises in holding that the respondent having been found not guilty by the Court, how he could be found guilty by the Enquiry Officer on the basis of the same evidence. It may be observed that while so holding, the learned Member failed to appreciate that the standard of proof and the principles governing the assessment/evaluation of evidence in a criminal case entailing the sentence of imprisonment in case of conviction are quite different from those applicable to the departmental/disciplinary proceedings for misconduct which can at the most result in punishment of dismissal/removal from service.
10. Next crucial question which falls to be determined is whether the initiation of disciplinary proceedings on the ground of misconduct by way of charge-sheet/show-cause notice can be treated as an act of unfair labour practice within the meaning of section 15(1) of I.R.O. So as to warrant interference by this Commission in exercise of its functions/powers under section 22-A of I.R.O. In the instant case, the respondent was charge-sheeted on the allegation of having stolen the property of his employer which was recovered front his person. He replied to the charge-sheet whereafter the departmental inquiry was ordered to be held against him and while the inquiry proceedings were still in progress, he filed the petition under section 22-A(8)(g) of I.R.O., 1969 before the Single Bench of the Commission and obtained an interim restraint order against any adverse action against him. The learned Member, however, allowed the appellant to proceed with the inquiry against the respondent. The enquiry has also since been finalized and the respondent has been found guilty of the charge levelled against him but no further action has been taken by reason of interim restraint order. Law by now is fairly well-settled that it is the inherent right of the employer to initiate disciplinary proceedings against an allegedly delinquent employee and to decide whether the charge levelled against him is correct or not and in our view, ordinarily it does not lie with this Commission to intervene while the proceedings are still in progress, and to quash such proceedings on the plea of unfair labour practice. Needless to state that in case any adverse order is finally passed against the employee in such proceedings, it is of course open to him to challenge the same in appropriate proceedings. It was so held by a Full Bench of this Commission in the case of "Amir Ali v. WAPDA " (1988 PLC 884). Reference may aptly be made to the following observations in that case:- "The basic matter against which the appellant had come to the Commission is, his suspension and the departmental proceedings initiated by service of show-cause notice upon him. Now, whether the charge levelled against him by the Department is correct or not, is a matter to be enquired into and decided under the relevant law by the Department itself. And in case the charge is established against the appellant and action, thereupon, is taken against him by the Department, he can hardly challenge the same as constituting unfair labour practice notwithstanding his assertions in that regard."
11. In the aforesaid view of the matter, we hold that the petition filed by the respondent before the Single Bench was not maintainable being premature and now that the departmental inquiry has been completed in which the respondent has been found guilty of the charges levelled against him, the appellant-company is entitled to issue second show-cause notice to the respondent who may reply thereto taking all the legal and factual pleas available to him including the contentions raised in his petition filed before this Commission which the appellant shall duly look into/examine and decide the disciplinary case in accordance with law. Needless to observe that if the respondent felt aggrieved of the final order passed in the disciplinary proceedings, he would be entitled to approach the appropriate forum for redress of his grievance.
12. Upshot of the above discussion is that we allow this appeal and set aside the impugned order of the learned Single Member with the observations aforementioned.