' My this order shall dispose of the application under Regulation 32(2) of the NIRC (Procedure and Functions) Regulations, 1973 (Case No,24(10)/2002 annexed with the petition under section 22A(8)
(g) of the LR.O., 1969 filed by the petitioner with the following prayer: "That the punishment order dated 25-1-2002, be set aside and respondent be directed not to commit any act of unfair labour practice against the petitioner as defined under section 15 of the I.R.O., 1969 by way of dismissal, discharge, removal from employment or transfer or threaten to dismiss, discharge or remove from employment."
2. Brief facts of the case are that the petitioner Muhammad Qasim, EST, of the respondent- Company was transferred from Mardan to Nowshera by the Deputy General Manager, Northern Telecom Region (NTR), Peshawar vide order dated 16-6-2001. Being aggrieved by the said transfer order dated 16-6-2001, the petitioner filed a petition No,4A(59)/2001 alongwith a stay application and an ad-interim order was issued on 27-6-2001 by this Bench which was recalled after hearing arguments of both the parties. However, the main petition was fixed for 3-11-2001. But on 1-11-2001, the respondent, Assistant General Manager of PTCL Northern Telecom Region-I Peshawar served a show-cause notice upon the petitioner with the direction to explain the reason within 14 days of the receipt of the said notice as to why penalty of dismissal from service as specified under Government (E & D) Rules, 1973 (adopted by PTCL) should not be imposed upon him on the grounds of misconduct. The petitioner in his reply dated 1-12-2001 requested the respondent to supply him copy of S.R.O. 1213(1)2(4) as mentioned in the said show-cause notice so that he may be able to file his reply to the said show-cause notice, but copy of the said S.R.O. Was not supplied to the petitioner. However, on 4-12-2001 the Deputy General Manager, Northern Telecom Region, Peshawar worte a letter to the Divisional Engineer Telegraph, Nowshera to direct the petitioner to furnish his reply to the show-cause notice within 3 days otherwise his case will be decided ex parte.
Copy of the said letter was endorsed to the petitioner. The petitioner in his letter addressed to the respondent gave a detail reply to the said show cause notice and also enclosed copy of the order dated 22-10-2001 passed by the Bench in Case No,4A(59)/2001/24(85)/2001 and requested that since the Hon'ble Commission has not yet decided the main petition and the matter is still pending adjudication before the Commission therefore in view of the said explanation it is hoped that the show-cause notice be withdrawn, but it appears that the explanation submitted by the petitioner did not satisfy the respondent, therefore the petitioner was directed to attend his office for personal hearing on 3-1-2001. The petitioner appeared for hearing but the Assistant General Manager, NTR, Peshawar in his capacity as authorized officer without affording of proper opportunity of being heard awarded the petitioner the following two penalties vide his letter dated 25-1-2002:
(1) Stoppage of two increments with future effect.
(2) Censure.
3. The petitioner being aggrieved by the punishment, awarded vide letter dated 25-1-2002 as referred to above filed the instant petition on 7-2-2002 and also moved an application for suspension of the aforesaid impugned order dated 25-1-2002. This petition alongwith stay application was placed before me on 11-2-2002 when after hearing the learned counsel, Mr. S. Rais Ahmad Jafri for the petitioner, copy of the petition and stay application was ordered to be sent to the respondent for his comments/reply with the following direction: "Learned counsel for the petitioner has further argued that the punishment order dated 25-1-2002 has not yet been implemented, this being so, the respondent is directed not to implement the impugned order dated 25-1-2002 and shall not pass any adverse order against the petitioner in respect of his employment/service till the next date of hearing."
4. The respondent while filing his written statement and reply to the stay application has resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding jurisdiction of the Commission and maintainability of the petition. It is strenuously contended that the petitioner being a civil servant and supervisor cannot invoke jurisdiction of this Commission. It is further submitted that no union activity exists in the PTCL, as such the petitioner cannot claim to be Assistant Secretary-General of Pakistan Telecommunication Employees' Union. On merits the respondent also controverted the allegations made by the petitioner.
5. I have heard learned counsel for both the parties on the stay application at considerable length and have also given may anxious thoughts to the issues involved in. The petition. Learned counsel for the petitioner has reiterated the petitioner's stand taken in his petition and read out the show- cause notice dated 1-11-2001 served upon the petitioner (Annexure-H of the petition) which is reproduced below: "Whereas you Mr. M. Qasim, E.S.T., Mardan was transferred from Mardan to D.E.T., Nowshera vide this office memo. No, S.I.V. 8/30 dated 16-6-2001"---"Whereas you Mr. M. Qasim, not only complied with the orders but filed the case in N.I.R.C. For cancellation of these orders (No,4A(50)/2001/24(85)/2001 dated 27-6-2001) which is a clear violation of S.R.O. 1213(1)2(4)"---"Whereas you Mr. M. Qasim, E.S. Prima facie guilty of misconduct in term of Government Servants (E & D) Rules 1973"---"Now therefore you the said Mr. M. Qasim E.S is hereby directed to show cause within 14 days of the receipt of this notice as to why the penalty of dismissal from service as specified under Government Servants (E & D) Rules, 1973 (adopted by PTCL) should not be imposed upon you on the grounds of misconduct, stating at the same time whether you wish to be heard in person and adduce any evidence/witness in support of your defence.
6. Learned Counsel for the petitioner has urged his arguments on factual as well as legal by referring to various documents. The basic arguments put forward by the learned counsel for the petitioner was that transfer of the petitioner is sub judice and pending adjudication before this Bench. Learned counsel for the petitioner has further submitted that service of the said show- cause notice and the penalty imposed by the respondent upon the petitioner itself amount to contempt of Court as laid down under section 22-C of the I.R.O., 1969. He contended that by serving the said show-cause notice and punishing the petitioner the respondent has pressurised the petitioner to withdraw the main petition which is still sub judice before the Commission. He also contended that after recording the evidence of the parties, it is possible that the petition may be accepted and order of the transfer of the petitioner may be cancelled. He submitted that by serving show-cause notice and by punishing the petitioner the respondent has committed contempt of the Commission as defined under section 22-C of the I.R.O., 1969,
7. He further contended that the punishment order dated 25-1-2002 which is passed on the basis of the show-cause notice dated 1-11-2001 is bad in law and tantamounts to unfair labour practice and come within the purview of section 15 of the I.R.O.
1969. The allegation as contained in the said show-cause notice is a clear-cut victimization of the petitioner and against the fundamental rights as envisaged in the Constitution of Pakistan. He further contented that allegation of the respondent that by invoking jurisdiction of the Commission to challenge his transfer order the petitioner had committed misconduct is without any substances as it does not come within the ambit of ' misconduct' as defined in the rules on the subject.
8. He further submitted that 'punishment order' dated 25-1-2002 is an act of unfair labour practice, therefore the petitioner is entitled to the grant of interim relief in terms of Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973, so as to prevent further occurrence of unfair labour practice and if the interim relief is not granted to the petitioner and the impugned punishment order is not suspended, the impugned order would be implemented resulting in the commission of unfair labour practice. He emphatically contended that the allegation of misconduct is totally incorrect and against the facts as well as against law. He further submitted that this very issue is the crux of the case for which the instant petition has been filed and therefore the petitioner is entitled to the interim relief.
9. Replying to the arguments of the learned counsel for the petitioner, learned counsel for the respondent raised preliminary legal objection regarding jurisdiction of this commission and maintainability of the petition. His first contention was that the petitioner is not an office-bearer of the C.B.A. Union because no such union exists in PTCL. His second contention was that being supervisor and civil servant the petitioner is not a worker under the I.R.O., 1969. Learned counsel for the petitioner replying to the above two contentions made by the respondent-counsel has contended that recently Full Bench of this Commission in Appeal No,12(11)/2001 and Appeal No,12(12/2001 has upheld the approval of the change of office-bearer of the Pakistan Telecommunication Employees' Union accorded by the learned Member/RITU of the Commission and has also held that the Engineering Supervisor Telephone are workers. When confronted with this situation, learned counsel for the respondents submitted that for the present he would not press the said two objections. The next contention of the learned counsel for the respondent was that since the PTCL, is run, managed and controlled by the Federal Government, hence this commission has no jurisdiction to deal with this case.
10. On the other hand learned counsel for the petitioner has contended that aim of the main petition is to prevent commission of the acts of unfair labour practice and the Federal Service Tribunal has not such power to prevent commission of unfair labour practice, while these functions have been specifically assigned to the commission under section 22A(8)(g) of the I.R.O. , 1969. The relevant para. Of section 22A(8)(g) of the I.R.O., 1969 is reproduced below:-- "Section 22A(8)(g)--to take in such manner as may be prescribed by regulations under section 22F measures calculated to prevent an employer of workmen from committing an unfair labour practice."
11. He further contended that notwithstanding the insertion of section 2-A in the Service Tribunals Act, 1973, the jurisdiction of N.I.R.C. Remains intact under section 22A(8)(g) of the I.R.O. 1969 and therefore the assumption of jurisdiction by the N.I.R.C. Is valid. Agreeing with the contention of the learned counsel for the petitioner, I hold that section 2-A of the Service Tribunals Act, 1973 is not applicable to the facts of this case as already held by the Larger Bench of this Commission and accordingly this Bench has jurisdiction to prevent occurrence of unfair labour practice.
12. As regards the objection raised by the petitioner regarding element of unfair labour practice, learned counsel for the respondent has emphasized that there is no element of unfair labour practice, therefore the petition is exclusively triable by the Federal Service Tribunal. While on the other hand the petitioner denied the aforesaid assertion, I am therefore persuaded to make further probe in the matter to dig out the facts and record evidence on this point. Moreover the petitioner as well as application for stay is filed under section 22A(8)(g) of the I.R.O., 1969 read with Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973. I therefore hold that allegations of unfair labour practice can only be decided by recording evidence of the parties and accordingly the objection regarding unfair labour practice raised by the respondents cannot be decided at this stage.
13. I have given my anxious consideration to the submissions, made by the learned counsel for both the parties. On minute examination of the proceedings of the parties and their respective versions. I find that the admitted fact is that petitioner is the Assistant Deputy Secretary-General II of Pakistan Telecommunication Employees Union. He was transferred from Mardan to Nowshera vide transfer order dated 16-6-2001 by the Deputy General Manager, Northern Telecom Region-I(NTR). The petitioner being aggrieved by the said order has filed a petition (No,4A(59)/2001) alongwith a stay application (No,24(85)/2001) and an ad-interim order was issued on 27-6-2001 by this Bench. But later on the said order was recalled after hearing arguments of both the parties on 22-10-2001 and the main petition was fixed for evidence of the petitioner, which is still pending adjudication.
Meanwhile the respondent issued a show-cause notice dated 1-11-2001, relevant para. Of the show- cause notice is reproduced below: "Whereas you Mr. M. Qasim, not only complied with the orders but filed the case in N.I.R.C. For cancellation of these orders (No,4A(59)/2001/24(85)/2001 dated 27-6-2001) which is a clear violation of S.R.O. 1213(1)2(4)". "Whereas you Mr. M. Qasim, E.S. Prima facie guilty of misconduct, in term of Government Servants (E&D) Rules, 1973."
14. A perusal of the said show-cause notice shows that basis of the allegation of misconduct is the result of filing of Petition No,4A(59) of 2001before this Commission to challenge his transfer from Mardan to Nowshera. When confronted with this situation, learned counsel for the respondent has quite fairly submitted that the allegation of misconduct seems to be outside the purview of the law on the subject, especially when the petitioner has joined his new place of posting and the main Petition No,4A (59) of 2001 was pending adjudication and which is still pending adjudication before this Bench. Further he could not show any law or decision of the superior Court in his favour that during pendency of the petition the respondent could punish the petitioner on the ground that why he had challenged his transfer order before the Commission. It may particularly be mentioned here that after disposal of the stay application (No,24(85) of 2001), the petitioner had joined his new place of posting. This very issue is the crux of the case for which this petition has been tiled and hence this can be best decided only after recording evidence of the parties.
15. As discussed above, I am quite satisfied for the present that the petitioner has made out a good prima facie arguable case and all other necessary ingredients for issuance of interim injunction lean in his favour. The petitioner will suffer an irreparable loss and injury if the interim relief sought by him is not granted.
16. Upshot of the above discussion is that the petitioner has made out a good prima facie arguable case of unfair labour practice on the present record, accordingly I have no reason to disagree with the contention of learned counsel for the petitioner, I therefore hold that issuance of the show cause notice or punishing the petitioner for an act which is impugned before this Commission and is pending adjudication, amount to an act of unfair labour practice. Consequently the application under Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 is accepted and the stay order dated 11-2-2002 is confirmed. The main petition shall now come up for petitioner evidence in the form of his affidavit in evidence on 25-7-2002.