1. ' SAIYED SAEED ASHHAD, C.J---This Constitutional petition has been filed by the petitioners, wherein the following reliefs have been sought:-- "That in view of the facts and grounds mentioned hereinabove, it is prayed that the present petition be accepted and the impugned orders dated 19-3-1998, 4-8-1998 and 17-2-1999 passed by the respondents Nos.2 and 1 respectively be set aside as the respondents have assumed jurisdiction without the respondent having complied with the mandatory provisions of law and even otherwise the respondents Nos.1 and 2 have erred in wrongly interpreting the provisions of section 22-A(8)(g) of I.R.O. 1969 in arriving at the conclusion whereby the company have been restrained to initiate disciplinary action against erring employee by misinterpretation of the provisions of law.
2. ' It is further prayed that the Hon'ble Court may be pleased to grant such further and or appropriate relief as the Hon'ble Court may deem fit under the circumstances."
3. ' The brief facts leading to the filing of this Constitutional petition are that respondent No,3 filed an application under section 22-A(8)(g) of Industrial Relation Ordinance, 1969 (hereinafter referred to as the Ordinance before respondent No,2 praying that the management of the petitioners be restrained from issuing charge-sheet, conducting inquiry and initiating disciplinary action against him on the basis of the inquiry proceedings and the reports submitted by the Inquiry Officer. The said order was challenged by the petitioners before respondent No,1, who upheld the order of respondent No,2. Hence this petition.
4. ' The grievance of the petitioners is that respondent No,3 was neither an office-bearer of Searle Pakistan Employees. Union, which was the C.B.A. In the establishment of the petitioners nor was an active member of the Union. The petitioners found that theft had been committed of pharmaceutical products for which an F.I.R. Was lodged on 28-10-1997 against unknown persons.
5. The police arrested one sweeper and recovered stolen property from him and he named respondent No,3 as one of the culprits. Respondent No,3 was taken into custody by the police but was bailed out on 1-11-1997. He remained continuously absent for more than ten (10) days for which a charge-sheet dated 22-12-1997 was issued to him. Thereafter, he reported for duty and without prejudice to the charge-sheet was allowed to resume duty. Domestic inquiry was initiated against him but he (respondent No,3) filed an application as stated above and obtained the impugned order from respondent No,2 which was confirmed by respondent No,l.
6. ' We have heard the arguments of M/s. Mahmood Abdul Ghani and M.A.K. Azmati, the learned counsel for the petitioners and respondent No,3 respectively and have also gone through the relevant provisions of law. Both the learned counsel had agreed that the matter may be disposed of finally at the Katcha Peshi stage.
7. ' Respondent No,3 had filed an application under section 22-A(8)(g) of the Ordinance and it will be useful to reproduce the said provision as under: -- 22-A. National Industrial Relations Commission--(1).....
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(8) The following shall be the function of the Commission, namely--
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(b) .............................................
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(e) .............................................
(f) .....................................................
(g) to deal with cases of unfair labour practices specified in sections 15 and 16 on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them, whether committed individually or collectively; in the manner laid down under section 25-A or section 34 or in such other way as may be prescribed, and to take in such manner as may be prescribed by regulations under section 22-F, measures calculated to prevent an employer or workman from committing an unfair labour practice;"
8. ' From perusal of the above clause (g) of subsection (8) of section 22-A, it is to be observed that the National Industrial Relations Commission has been authorised to deal with cases of unfair labour practices on the part of employers, workmen, trade unions of either of them or persons acting on behalf of any of them. For the purpose of determining as to what will amount to unfair labour practice, it will be necessary to examine sections 15 and 16 of the Ordinance. For the purpose of this petition, the relevant section is section 15, which deals with unfair labour practices on the part of employers. Section 16 will not have any application to the facts of this case as it deals with unfair labour practices on the part of workman, which is not the subject-matter in this Constitutional petition. It will be appropriate to reproduce section 15 which is as under:-
15. Unfair labour practices on the part of employers--(1) No employer or trade union of employers and no person acting on behalf either shall-
(a) impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union, or
(b) refuse to employ or refuse to continue to employ any person on the ground that such person is or is not, a member or officer of a trade union, or
(c) discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is or is not, a member or officer of a trade union, or
(d) dismiss, discharge, 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, or
(ii) participates in the promotion, formation or activities of a trade union.
(e) induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person.
(f) [compel or attempt to compel any officer of the collective bargaining agent to arrive at a] settelement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods,
(g) interfere with or in any way influence the balloting provided for in section 22 [or]
(h) recruit any new workman during the period of a notice of strike under section 28 or during the currency of a strike which is not illegal except where the Conciliator, had, being satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, permitted temporary employment of a limited number of workmen in the section where the damage is likely to occure;]
(i) close down the whole of the establishment in contravention of Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (West Pakistan Ordinance No,VI of 1968); or
(j) commence, continue, instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lock-out].
(2) Nothing in subsection (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being, a member or officer of a trade union of workmen.
9. ' Mr. M.A.K. Azmati was repeatedly asked as to what unfair labour practice was committed by the management of the petitioners in respect of which respondent No,3 could have moved an application under section 22-A of the Ordinance Mr. M.A.K. Azmati was unable to give any satisfactory reply. His submission was that the management of the petitioners had resorted to harass respondent No,3 by falsely implicating him in the alleged theft of pharmaceutical products as they wanted to get rid of him on account of his union activities. When asked as to what union activities were being undertaken by respondent No,3, which annoyed the management of the petitioner or which where adversely effecting the interest of the management of the petitioner, Mr. M.A.K. Azmati was unable to give any satisfactory or cogent explanation. It may also be pointed out that in the F.I.R. Lodged by the management in relation to the theft of pharmaceutical products, they had not disclosed the name of any person. The name of respondent No,3 was disclosed by a sweeper, who was arrested on suspicious after having been found in possession of some of the stolen pharmaceutical products. In the circumstances, the contention that the management had acted with dishonest and mala fide intention and had falsely involved respondent No,3 in the alleged theft of pharmaceutical products is without any substance. It is further to be observed that the domestic inquiry against respondent No,3 was to be initiated for his continuous unauthorised absence for more than ten (10) days in view of the provisions of Standing Order 15 (iii)(e) of Industrial and A Commercial (Standing Orders) Ordinance, 1968, according to which absence :without leave for more than ten (10) days amounts to misconduct.
10. ' A bare perusal of section 15 reproduced hereinabove is sufficient to establish that the management of the petitioner in initiating disciplinary proceedings against respondent No,3 on the basis of the inquiry report submitted by the Inquiry Officer was not guilty of committing unfair labour practice as defined in section 15 of the Ordinance. In the circumstances, exercise of jurisdiction by respondents Nos.1 and 2 under section 22-A(8)(g) of the Ordinance was beyond the scope of their jurisdiction and both of them had acted without jurisdiction in taking cognizance of the application filed by respondent No,3.
11. ' Upon the above discussion, we are satisfied that both, respondents Nos.1 and 2 erred in exercising jurisdiction on the application of respondent No,3 under section 22-A(8)(g) of the Ordinance for alleged unfair labour practice on the part of management of the petitioner and that both of them illegally proceeded against .He management of respondent No,3 without first determining as to whether the alleged action of the management of the petitioner would be covered by the provisions of section 15 of the Ordinance so as to come within the definition of unfair labour practice, which was an essential condition for conferring jurisdiction on respondents Nos.1 and 2 to proceed with the application of respondent No,3.
12. ' The orders passed by respondent No,1 and upheld by respondent No,2 were in illegal exercise of their jurisdiction and cannot be sustained.
13. ' By a short order dated 16-1-2001, we had admitted this Constitutional petition to regular hearing and had allowed the same setting aside the order of respondent No,2 confirming the order of respondent No,1 and dismissing the application of respondent No,3 for reasons to be recorded later.
14. These are the reasons for the said short order. /Order accordingly.