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Petitioner: Syed ZAFAR ABBAS VS Respondent: GLAXO WELLCOME PAKISTAN LIMITED and another
Court Name: National Industrial Relations Commission Judge(s): Qazi Ahmed Saeed Title: Syed ZAFAR ABBAS vs GLAXO WELLCOME PAKISTAN LIMITED and another Case No.: Case No,4A (227) and 24(348) of 1999 Date of Judgment:2002-03-28 Reported As: 2002 PLC 172 Result: Petition dismissed
Judgment ORDER ' This petition under section 22A(8)(g) of the I.R.O., 1969 annexed with an application for grant of stay was filed by Syed Zafar Abbas an. Electrician cum-Service Operator, Glaxo Wellcome Pakistan Limited Islamabad against Messrs Glaxo Welcome Pakistan Limited through its Station-Head, Islamabad and another on 3-8-1999 before the Commission. 2. Briefly stated, the case of the petitioner as set-out in the petition is as follows: (I) That the petitioner is a permanent employee of the respondents establishment and an elected and approved Deputy General Secretary of Glaxo Wellcome Musawat Workers Union, registered as an industrywise trade union with the NIRC under Registration Certificate No, 15 of 1990. (II) That in his capacity as Deputy Secretary General of the said union, the petitioner has to remain active and involved in day to day affairs of the union but the management was bent upon victimizing him. Consequently the respondents transferred him from Lahore Factory to Sales Office, Islamabad, without any justification, only to cut him out from other workers of the Factory employed by the respondents. The petitioner filed a petition before the Punjab Labour Court No,1, Lahore against the said transfer order and obtained a prohibitory order on 2-10-1998. Though the petitioner succeeded in getting the stay order on 2-10-1998 against the transfer but since the management wanted to get rid of him, they filed an appeal before the Punjab Labour Appellate Tribunal and succeeded in getting the order dated 2-10-1998 of Labour Court No,1 suspended. The petitioner filed a Writ Petition No,21177 of 1998 before the Lahore High Court, Lahore against the order dated 6-10-1998 of Punjab Labour Appellate Tribunal. The order of the Punjab Labour Appellate Tribunal was suspended by the Hon'ble Lahore High Court Lahore and the petitioner continued his services at Lahore. However, on the assurance advanced by the respondents management that he
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would not be victimized any more and due to common interest of the parties, the petitioner obeyed the transfer order and joined his duties at Islamabad. On 14-5-1999 all the litigations for and against were disposed of as withdrawn including the aforesaid writ petition. (III) That the petitioner was also pursuing cases of almost 150 employees in the Court of law who were dismissed from service by the respondents management. After joining his duties at Islamabad, he continued his trade union activities to the disliking of the respondents- management. Consequently due to his involvement in trade union activities, the management as an act of victimization concocted a case of theft against the petitioner and served him with a show-cause notice dated 22-7-1999 (copy at Annexure-B to the petition). It was further contended that on 26-6-1999 the petitioner went to Lahore and returned on 27-6-1999, when the Security Guard of the office informed him that same theft has taken place from the store. (IV) That since the show-cause notice was devoid of verifiable details, the petitioner, therefore, moved an application dated 29-7-1999 (copy at Annexure-C to petition) requesting the respondent-management to provide him with the details alongwith the relevant documents enabling him to reply the said show-cause notice. But the management did not supply any document as requested by him. On the contrary the petitioner was served with a notice of Inquiry (copy at Annexure-D to the petition) without receiving reply to the show-cause notice from the petitioner. Since involvement of the petitioner was absolutely false, baseless and with mala fide intention, therefore, the petitioner on 2-8,-1999 submitted another application to the management with the request to withdraw the show-cause notice and to withhold the Inquiry (copy at Annexure-E to the petition). (V) It is alleged in para.6 of the petition that issuance of show-cause notice and holding of immediate inquiry without observing the legal formalities, has been done with a view to do away with the services of the petitioner as a measure of unfair labour practice on account of historical lawful trade union activities in his capacity as approved and elected Deputy Secretary General of the Union. It is further alleged that he was subsequently elected as President of the said union and his case for approval as President has been pending before the Full. Bench of this Commission. (VI) In order to bring his case within the scope of section 22A(8)(g) of the I.R.O., 1969, it was further alleged that referendum proceedings pending with the N.I.R.C. Were delayed by the management. ' Consequently a Writ Petition No,7488 of 1998 was filed by the petitioner's Union before the Lahore High Court, Lahore, wherein the Hon'be High Court was pleased to direct the N.I.R.C. To hold the referendum as soon as possible but the concerned Appeal No,12(123) of 1998 filed by the rival union is still pending before the Full Bench of the Commission which was filed only to delay the secret ballot. It is contended that the respondents Management does not want the petitioner's union to succeed in the referendum and as such in order to cause injury to the employment of the petitioner by way of dismissal, discharge, removal and termination of the petitioner from service, inquiry proceedings have been initiated which amount to an act of unfair labour practice on the part of respondents as defined under section 15 of the I.R.O., 1969. (VII) It was prayed that the respondents be directed not to commit any act of unfair labour practice by way of discharge, removal and termination of the petitioner from service and not to cause injury to the employment of the petitioner in any manner. It was further prayed that the respondents may be directed not to interfere with the lawful trade union activities of the petitioner. 3. The petition was accompanied with the application for grant of stay (No,24(348)/99) with the prayer that the respondents-Management be directed to maintain status quo in respect of the employment of the petitioner till final disposal of the main petition. 4. This petition was filed on 3-8-1999 and the then learned Chairman assigned the case to Mr. Ijaz A. Shaikh, the then learned Member of Karachi Bench who was visiting Islamabad on that date. Accordingly the petitioner alongwith stay application were placed before the said learned Member
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on 5-8-1999, who after hearing the learned counsel for the petitioner, directed the respondents to file their comments on 23-8-1999. The respondents were also directed not to dismiss or remove the petitioner for employment on the basis of charge-sheet dated 22-7-1999 and the inquiry ordered on 30-7-1999. 5. The respondents while filing their written statement and reply to the stay application, have resisted and vehemently opposed the petition by raising inter alia certain legal objections regarding maintainability of the petition. On merits the respondents also controverted the allegations/objections made by the petitioner. 6. The case was fixed for arguments on the stay application on 16-11-1999. During short arguments, the position which had emerged was that the petition was filed on 3-8-1999 but the learned Member passed the interim order on 5-8-1999, directing the respondents not to dismiss or remove the petitioner from employment till the next date of hearing, while services of the petitioner were dismissed on 4-8-1999 as evident from the written statement filed by the respondents. However, during hearing of the case on 20-3-2000, the learned counsel for the petitioner submitted that since after filing of the petition, the respondents had dismissed the petitioner, therefore, he would like to file amended petition. He was allowed to file amended petition which he filed on 5-5-2000 with the following prayer:-- "Under the circumstances, it is most respectfully prayed that show-cause notice dated 22-7-1999 being devoid of verifiable details and issuance of enquiry notice dated 30-7-1999 prior to the submission of the explanations of the petitioner issued by the respondent No,1 and enquiry completed in one day i,e, 2-8-1999 may kindly be declared as illegal being acts of unfair labour practice on the part of employer and consequent upon the dismissal order alleged to be issued on 4-8-1999 by the respondent No,2, may please be rescinded as illegal and not sustainable in law being issued to deceive this Honourable Commission by misusing the process of law only to harm the petitioner and he be re-instated into his services with all back benefits. ' It is further prayed that the respondents, may also be directed not to interfere with the lawful trade union activities of the petitioner." 7. The respondents while filing their written statement to the amended petition have reiterated the respondents stand taken in their earlier written statement. They have vehemently opposed the petition by raising\ inter alia certain legal objections regarding maintainability of the petition. On merit they also controverted the allegations made by the petitioner in his amended petition. 8. Arguments on the issues of maintainability of the petition as raised by the respondents were heard. The gist of the preliminary objections raised in the written statement was that the petition does not fall within the scope of section 22-A (8)(g) read with section 15 of I.R.O., 1969. The then learned Member, Mr. Abdul Sattar Khan after hearing the arguments on the maintainability of the petition observed that unfair labour practice is a mixed question of law and facts which can be scanned after recording evidence of the parties. He held that the objections are premature to give any finding regarding maintainability or otherwise of the petition at this stage and accordingly the objection of the respondent with regard to the maintainability being premature is turned down. 9. In their written statement/parawise comments, the respondents have contended that they have no knowledge as to whether the petitioner is approved and elected Deputy General Secretary of the. Union as the petitioner has not annexed any document to this effect. It was further contended that the petitioner has not pointed out even a single trade union activity and also the petitioner union is not a CBA, within the meaning of section 22 of the I.R.O, 1969. It is further contended that though the petitioner was a permanent employee but his services have been terminated and he is no more in the employment of the respondents. It is further contended that the petitioner before approaching this Commission had also filed a writ petition before the Hon'ble Lahore High Court, indirectly challenging the show-cause notice dated 22-7-1999 having almost the same grievances,
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which was dismissed by the Hon'ble High Court. So it is a well-settled law that the person who comes to a Court after concealment of the material facts, is not entitled to any relief. Even otherwise this petitions is hit by the principle of res judicata 10. As regards allegation of the petitioner about his transfer due to trade union activities, the respondents denied the allegation and submitted that the transfer order remained in-tact and the petitioner had indulged the respondents in frivolous litigations. He had voluntarily joined his duties at Islamabad. Regarding representation of the workers cases before the Labour Court, it was contended that since the petitioner-union is not a CBA, therefore, neither the petitioner nor his union was legally competent to represent the workers in any proceedings in view of the provisions contained in section 22(12) of the LILO., 1969 which lays down that it is the sole prerogative of the CBA to represent workers in any proceedings. The allegation that the petitioner purused the cases of 150 workers in the Court of law was particularly denied by the respondents. The respondents while denying all these allegations have contended that these allegations have been inserted only to bring the case of the petitioner within the scope of section 22-A (8)(g) with a malice and mala fide intention and ulterior motives. 11. Regarding the defects in charge-sheet dated 22-2-1999, it was contended by the respondents that the charge-sheet itself contains details of all allegations, therefore, there was no need to serve statement of allegations or to furnish further documents to the petitioner. It was next contended that the petitioner did not reply to the show-cause notice within the prescribed time, hence an inquiry was ordered to enable the petitioner to prove his innocence. It was also submitted that the petitioner was allowed to cross-examine the prosecution witness but he refused to do so. He was also allowed to produce evidence in his defence but he again refused to avail the opportunity. The inquiry officer found the petitioner guilty and after consideration of all the factors in the case, his services were dismissed vide letter dated 4-8-1999 (copy at Annexure-R/1). It was further contended that copy. Of the said letter was sent through registered A.D vide Postal Receipts Nos.1563 and 1564 dated 4-8-1999 (copies at Annexures R-2 & R-3). The said dismissal order was also sent through TCS (Copy at Annexures R-4 and R-5). His dismissal order was also sent at his residential address at Lahore through registered A.D vide Postal Receipts. Nos. 548 and 549 (copies at Annexure R-6 & R-7). 12. As regards the allegations about referendum, it was contended that participation in referendum is the legal right of the union and the management has nothing to do with the said secret ballot. The allegations of unfair labour practice have been seriously denied. In para.8 of the written statement it has been stated that the petitioner has failed to make out a case of unfair labour practice before this Commission which is a pre-requisite condition for invoking jurisdiction of this Commission. It was, therefore, contended that this Commission has no jurisdiction to deal with the case of the petitioner. 13. As regards the dismissal of the petitioner, it was contended that the petitioner was charge- sheeted for committing of misconduct and after holding an impartial inquiry he was dismissed from service strictly in accordance with law and that the respondents have neither committed any unfair labour practice nor they intend to commit the same in future. In para. 17 of their written statement, it has been submitted that the petitioner has failed to make out a case of unfair labour practice, consequently the petitioner has no locus standi to approach this Commission; however, in the present case the Labour Court has the exclusive jurisdiction as such this Commissioner lacks jurisdiction to deal with the matter. The respondents have emphatically denied all allegations and prayed that the instant petition be dismissed. 14. Both the parties adduced their evidence through affidavits-in-evidence. Petitioner filed his affidavit-in-evidence in support of his contention, He was cross-examined by the learned counsel for the respondents. Similarly the respondents in support of their version produced two witnesses
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namely Mr. Tariq Masood Aslam, Deputy Manager and Mr. Rafiullah Station-Head, Islamabad of the respondents-Company, who have filed their affidavit-in-evidence. Both of them were cross- examined by the learned counsel for the petitioner. 15. The then learned Member, Mr. Abdul Sattar Khan, however, again called Mr. Tariq Masood Aslam, Enquiry Officer as Court-witness (C.W.1) and confronted him with the inquiry proceedings. The witness admitted that the enquiry proceedings were written in his hand which is correct and that the proceedings also bears his signatures. The learned counsel for the petitioner was allowed to cross-examine the witness. The learned counsel for the respondent was also offered to cross- examine the witness but he did not avail the opportunity. 16. Learned Counsel for the parties not only advanced their oral arguments but also supplemented the same by their written arguments. 17. The learned counsel for the petitioner while justifying filing of the petition under section 22-A (8) (g) read with section 15 of I.R.O., 1969, before the Commission on the ground of unfair labour practice has also contended that on merits dismissal of the petitioner was illegal on the grounds which are briefly stated as under:- (i) The show-cause notice dated 22-7-1999 was not only vague but also devoid of verificable details. (ii) The petitioner moved two applications for supply of documents and statement of allegations but the respondent-Management deliberately did not furnish the same. He was, therefore, seriously prejudiced in his defence. (iii) There was no material on record against the petitioner with the management to order a domestic inquiry. He was instantly served a notice dated 30-7-1999 to appear before the Inquiry Officer on 2-8-1999 without giving him an opportunity to prepare himself properly for his defence and to make efforts to nominate co-worker for his assistance m the enquiry because the next two days i,e, 31st July and 1st August being Saturday and Sunday, were closed days due to weekly holidays, accordingly he was not allowed to nominate a co-worker of his choice to assist him in the inquiry proceedings, which is the right of the petitioner. (iv) The petitioner was virtually restrained from proving his innocence. He was not supplied report of preliminary investigation if any and other necessary documents forming the basis of alleged misconduct. (v) He tried to submit has explanation/reply dated 1-8-1999 to the Station-Head (respondent No,1) on 2-8-1999, but he refused to receive the same by asking the petitioner to submit the same to the Enquiry Officer, which the petitioner submitted to the Enquiry Officer. In the said reply the petitioner not only high-lighted the law as well as precedents of the superior Courts for supply of documents forming the basis of alleged misconduct, but also denied all the alleged charges levelled against him and challenged the authority of Station-Head (Respondent No,1) to issue the instant show- cause notice and thereupon the inquiry notice as the Station Head is neither an employer of the petitioner nor the authority to dismiss the petitioner. It is further submitted that employer of the petitioner is the Factory Manager at Lahore. (vi) Statement of witness Bakhat Nazir was not recorded on oath. His statement does not implicate the petitioner. Statements of other witnesses are also not recorded on oath and they said nothing against the petitioner. (vii) There is no evidence against the petitioner except a hearsay narration. The name of eye- witness Chowkidar was not disclosed by the prosecution. His testimony should not have been delivered as it was biased, tainted and under pressure of the respondents. (viii) No document was produced to show shortage of medicines. (ix) Though proceedings recorded in presence of the petitioner but no opportunity of cross- examining the witnesses was given by the Inquiry Officer.
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(x) The statement of the petitioner was also recorded during intervals when the prosecution witnesses were being examined. (xi) The petitioner was not told that the inquiry proceedings have been finalised on 2-8-1999. He was under the impression that he would be allowed to lead his evidence to prove his innocence. (xii) The petitioner also challenged the averments made in the affidavits of the respondents witnesses which are inconsistent with the plea taken by the respondents in their written statement. (xiii)Other points challenging the domestic inquiry and the defence witnesses in the Court, Were also formulated by the learned counsel for the petitioner. 18. Learned Counsel for the petitioner has prayed that the petition may be accepted and the impugned dismissal order dated 4-8-1999 issued by the respondent-Management may be rescinded as illegal and not sustainable in the eyes of law and the petitioner be reinstated in service with all back benefits. In support of his contention, he placed reliance on the judgments reported in: - (I) 1989 PLC 79 (II) 1983 PLC 669 (III) 1986 PLC 620 (IV) 1988 PLC 246 (V) 1985 PLC 207 (V) 1983 PLC 652 (VI) 1990 PLC 460 (VII) 1987 PLC 547 (VIII) 1988 PLC 639 (IX) 1990 PLC 718 (X) 1983 PLC 130 (XI) NLR 1980 TD 321 (XII) 1969 PLC 506 (XIII) 1974 PLC (Note) 36 (XIV) 1999 SCMR 705 (XV) PLD 1965 (WP) Lah. 394 (XVI) PLD 1964 Kar. 337 (XVII) 1991 PLC 160 (XVIII) 1991 PLC 44 (XIX) 1981 PLC 609 (XX) 1990 PLC 662 (XXI) 1996 PLC 162 (XXII) PLD 1978 Kar. 152 (XXIII) PLJ 1980 Karachi 376. 18. As the respondents have challenged the jurisdcition of the Commission on the ground that the petitioner has failed to make out a case of unfair labour practice as defined under section 15 of the I.R.O., 1969, I would, therefore, like to discuss the evidence and the averments made by the parties in this regard. Though legal objections as to the jurisdiction of the Commission to entertain the instant petition were raised in the written statement but the then learned Member in his wisdom wanted to record the evidence on this issue. As stated earlier, the petitioner had made the following allegations in order to prove that his case falls within the scope of section 22-A(8)(g) read with section 15 of the I.R.O., 1969:- (a) That the petitioner is the Deputy Secretary General Glaxo Wellcome Musawat Workers Union and that because he was holding an important post in the union, he was carrying on trade union activities in the Glaxo Wellcome Musawat Workers Union which is an industry wise trade union registered with this Commission and, being an active trade unionist involved in the day to day affairs of the union. The respondents-Management, therefore, victimised him on account of his lawful trade union activities which amount to unfair labour practice. Arguments of the respondents in rebuttal to this assertion of the petitioner was that the petitioner has failed to point out any specific trade union activity on his part and mere holding of a post in a trade union does not bring the case within the mischief of section 15 of .The I.R.O., 1969. He referred 1974 PLC 306 wherein it has been held that initiation of disciplinary proceedings against an employee being a routine matter of Industrial and Commercial Establishments, would not lead to any presumption of unfair labour practice under section 15 of I.R.O., 1969. To hold an enquiry against its employees suspected guilty of misconduct is the right of employer which could not be curbed or taken away merely because the employee happened to be an office-bearers of the trade union and as such this Commission has no jurisdiction to adjudicate upon and deal with the matter. In this regard reliance is also placed by the learned counsel for the respondents on the decisions reported in:-- (I) PLD 1988 SC 53 (II) 1990 PLC 662 (III) 2000 PLC 557 and (IV) 2000 PLC 254. ' The gist of these decisions is that the law does not confer a general jurisdiction upon this Commission except where the employer commits or is likely to commit an act, of unfair labour practice as defined under section 15 of the I.R.O. 1969. Further though malice or mala fide action constitutes a very strong ingredient of unfair labour practice, but only malice does not constitute unfair labour practice, just because proceedings of
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domestic enquiry were alleged to have been conducted illegally and in violation of basic tenets of procedure of conducting inquiries would not ipso facto bring the case within the ambit of unfair labour practice nor it would lead to the conclusion of malice or mala fides. The N.I.R.C. Has thus no jurisdiction to sit in appeal against the inquiry proceedings held by the employer or to entertain such petition. (b) Regarding the allegation of the petitioner that proceedings for holding referendum for determination of CBA in the respondent Establishment is also lying with this Commission since long and the higher management of the respondents Establishment intends to delay, the same and which fact can easily be ascertained from Writ Petition No,7488 of 1998 filed by the union of the petitioner before the Lahore High Court, wherein His Lordship Mr. Justice Sharif Hussain Bokhari was pleased to ask the Commission to hold the referendum as soon as earlier, the respondents submitted in para. 7 of the written statement that they denied the said allegations for want of knowledge as no such copy of the Writ Petition No,7488 of 1998 has been filed with the petition. In para. 15 of his…
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