2001 P L C 190

[National Industrial Relations Commission]

Before Zia Mahmood Mina, Chairman,

Muhammad Hussain Chaudhry, Member
and Ghulam Sarwar Khero, Secretary Labour

ADIL KHAN and 3 others

versus

POST MASTER GENERAL, SOUTHERN SINDH

CIRCLE, KARACHI and another

Appeal No.12(142) of 1999, decided on 4th April, 2000.

Industrial Relations Ordinance (XXIII of 1969)‑‑‑

‑‑‑‑Ss.22‑A(8)(g) & 22‑A‑‑‑National Industrial Relations Commission (Procedure and

Functions) Regulations, 1973, Regln. 32(2)(c)‑‑‑‑West Pakistan Industrial and
Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O. 15‑‑‑
Allegation of unfair labour .practice by employee‑‑‑Appeal before National Industrial
Relations Commission‑‑‑ Appellants/employees were charge‑sheeted for allegations of
misappropriation/embezzlement of huge Government money which allegations were
also subject‑matter of criminal cases registered against them‑‑‑Employees filed petition
under S.22‑A(8)(g) of Industrial Relations Ordinance, 1969 against issuance of the
charge‑sheet alongwith stay application contending that they had been proceeded
against with the object of punishing them for their lawful trade union
activities‑‑‑Member of National Industrial Relations Commission dismissed the
petition holding that there was nothing on record to show that proceedings against
employees were initiated because of their trade union activities‑‑‑Member of the
Commission further found that employees having been charged with
misappropriation/embezzlement of huge amount of Government money, unless case
against them was investigated, Management could not reach the conclusion regarding
charge against them‑‑‑Validity‑‑‑Employers had a right to initiate disciplinary
proceedings against employees on charge of misconduct‑‑‑Issuance of charge‑sheet
and holding of enquiry to find out whether charge levelled against employees was
correct or not, was statutory requirement‑‑‑Employer having initiated disciplinary
proceedings, could take them to logical end and employees could not be permitted to
frustrate/circumvent such proceedings by simply pleading victimization on account of
trade union activities unless they placed on record sufficient material to show that
action being taken against them was motivated by their lawful and legitimate trade
union activities‑‑‑In view of grave nature of misconduct alleged against employees,
their petition against initiation of disciplinary proceedings against them was rightly
dismissed by Member of National Industrial Relations Commission which could not be
interfered with in appeal.

National Motors' case 1987 PLC 547 ref.

Ch,. Muhammad Ashraf Khan for Appellant.

ORDER
ZIA MAHMOOD MIRZA (CHAIRMAN).‑‑‑This appeal under section 22‑D of
I.R.O. is direct:' against the order of the Single Member, Karachi Bench, dated
18‑6‑1999 dismissing appellant's Petition No.4‑A(305) of 1999‑K alongwith their stay
application.
2. The appellants who were the employees of the Postal Department and claimed to be
the members and office‑bearers of National Organization of Postal Employees (NOPE)
brought the afore‑referred petition against the two respondents (Post Master General,
Southern Sindh Circle, Karachi and City Superintendent of Post Office District
Central, Karachi) who, it was alleged, had involved the appellants in three criminal
cases registered with the police, one after the other, on false and fabricated allegations.
Two cases were got registered against all the appellants on 17‑8‑1996 and 30‑8‑1996,
while the third F. I. R. No. 12 of 1996 was lodged with the police on 4‑9‑1996 alleging
fraud and forgery committed in Franchise Post Office‑III by the appellants Nos. l and
4, and the allottee of that Post Office. It was further alleged in the petition that the
respondent authorities with a view to dismiss the appellants from service so as to
punish them for their lawful trade union activities issued them show‑cause notices for
misconduct based on false allegations. Grievance was made by the appellants in their
petition that despite their written requests, they were not supplied copies of the relevant
record which they needed for filing reply to the show‑cause notices. The appellants
also expressed apprehension that the respondents were intending to dismiss them
without holding any enquiry, on these allegations, directions were sought to be issued
to the respondents "to withdraw from the acts of unfair labour practice initiated by
them", to withdraw the proceedings initiated against the appellants and refrain from
finalizing any punitive action against them and to submit the findings to the
Commission.

Alongwith the main petition, an application was also filed under Regulation 32(2)(c) of
N.I.R.C.(P&F) Regulations, 1973 read with Order 39, rules 1 and 3, C.P.C. for the
grant of interim prohibitory order.

3. The appellants' petition was placed before the learned Single Member who vide
order, dated 16‑11‑1996 called for the comments from the respondents and directed
that in the meantime, the appellants shall not be dismissed from service. The
respondents were, however, allowed to proceed with the process of enquiry with the
direction that they shall submit the enquiry proceedings before him.

The respondents filed the comments and counter‑affidavit denying all the allegations of
unfair labour practice levelled against them in the petition and the appellants filed
rejoinder thereto. The case remained pending before the learned Singe Member for
about three years and has been decided by him vide the impugned order, dated
18‑6‑1999 whereby the appellants' petition together with the stay application has been
dismissed and the interim prohibitory order re‑called.

4. We have heard the learned counsel for the appellants and have also perused the
impugned order and other material available on the record. It is an admitted position
that the appellants were charge‑sheeted for mis appropriation/embezzlement of
Government money to the tune of Rs.24,01,643.50 which allegation was also the
subject‑matter of F.I.R. A No.12 of 1996, dated 4‑9‑1996, registered under sections
409, 420, 468, 471, 477‑A and 109, P.P.C. read with section 5(2) of P.C.A., 1947
against Adil Khan and Shahbaz Khan appellants Nos.1 and 4 and one Rafi Ahmad
Khan, proprietor/allottee of Frenchise Post Office No.III of Tariq Road, Karachi. It is
also on record that two other criminal case were registered against all the appellants,
one vide F.I.R. No. 178 of 1996, dated 12‑8‑1996 (for manhandling Mr. Muhammad
Farooq. Director, Frenchise PMG Office, Karachi) and the other through F.I.R. No. 199
of 1996, dated 30‑8‑1996 alleging unauthorised removal of record by the appellants
and they were also stated to be facing trial in these cases. The appellants were also
departmentally proceeded against for misconduct and corruption. Domestic enquiry
was held against them which, it is stated, they did not join and were found guilty by the
Enquiry Officer. Final action was, however, not taken against them in view of interim
restraint order issued by the Single Member. The impugned order shows that the
learned Member after hearing the counsel for the parties and going through the
pleadings and other record came to the conclusion that there was nothing on the record
to show that the proceedings were initiated against the appellants because of their trade
union activities. The learned Member took note of the fact that the appellants were
charged with misappropriation/embezzlement of Government money to the tune of
Rs.24,01,643.50 and observed that unless the case was investigated, the management
could not reach any conclusion regarding the said charge. The learned Member relying
upon a Full Bench Judgment of this Commission in the case of National Motors
reported as 1987 PLC 547 observed that it is the legal right of the management to issue
the charge‑sheet and proceed against its employee on the charge of misconduct.
Proceedings on these premises, the learned Member dismissed the appellants' petition
as also the stay application by his order, dated 18‑9‑1996 impugned in the present
appeal.

5. In view of the factual position afore‑noted which the learned counsel for the
appellants has not controverted, no legitimate exception can be taken to the impugned
order and premises on which it is based. As rightly observed by the learned Member, it
is the legal right of the employer to initiate disciplinary proceedings against his
employee on a charge of misconduct. In fact, issuance of charge‑sheet and holding of
an enquiry to find out whether the charge levelled against the delinquent employee is
correct or not is statutory requirement. In our view, the employer having initiated the
disciplinary proceedings can take them to the logical end and the employee cannot be
permitted to frustrate/circumvent such proceedings by simply pleading victimization
on account of trade union activities unless he places on record sufficient material to
show that the impugned action being taken against him is motivated by his lawful and
legitimate trade union activities. In this view of the matter coupled with the grave
nature of the misconduct alleged against the appellants their petition filed before this
Commission to challenge the disciplinary proceedings initiated against them has been
rightly dismissed by the Single Member.

Apart from what has been said above, this appeal even otherwise is rendered
infructuous as it is stated by the appellants though by way of grievance that
immediately after the dismissal of the case/passing of the impugned order, they were
dismissed from service vide order, dated 19‑6‑1999. The appellants have further stated
in para. 8 of their appeal that they intend to challenge their dismissal before the Federal
Service Tribunal and "therefore, no grounds on merits against the said dismissal order
are being contended/pleaded in this appeal".

For the reasons aforementioned, this appeal merits dismissal and the same is hereby
dismissed with the observation that the appellants may seek/press their remedy against
their dismissal from service before the appropriate forum.

H.B.T./23/NIRC Appeal dismissed.