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Case No. 24(190) of 1985, decided on 18th September, 1985.

National Industrial Relations Commission (Procedure and Functions) Regulations, 1973‑‑

‑‑‑Regln.32 (2)‑‑Industrial Relations Ordinance (XXIII of 1969), S. 15‑ Phrase "unfair Labour practice", explained‑‑Suspension of employees, held, was not act of unfair labour practice‑‑Employees were required to show that employer had suspended them for reason that such workers are, or propose to become or seek to persuade any other person to become member or officer of trade union to participate in promotion, formation or activities of trade union‑‑There being no such allegations in complaint, the requirements of law were not fulfilled‑‑Application with regard to suspension of employees alleging unfair labour practice was not competent in circumstances.

P L D 1983 Lah. 120; P L D 1982 Lah. 420; 1979 P L C 293; 1983 P L C (C.S.) 73; 1978 S C M R 367; 1975 P L C 594; 1975 PLC 98; 1981 P L C 47; 1975 P L C 98; P L D 1981 Lah. 752; 1980 P L C 752; 1984 P L C 716; P L D 1976 Lah. 611; 1983 P L C 1090; 1980 LLC 49; 1969 P L C 216; 1969 P L C 691; P L D 1975 S C 24 and P L J 1975 Tr. C 432 ref.

‑‑Ss. 32, 33 & 41‑‑Appointment of Enquiry Officer‑‑Requirement‑ Appointment of Enquiry Officer, held, was prerogative of management‑ Delinquent employee could not force management to appoint enquiry officer of his own choice.

‑‑‑S. 2 (xxiv)‑‑Settlement between management and employees‑‑Such settlement not arrived at through conciliation proceedings, and copy thereof not endorsed to authorities concerned, held, was not settlement in consonance with law and was not enforceable‑fn‑circumstances.

Qureshi Muhammad Hafeez for Petitioner.

Ataur Rehman Sheikh for Respondents.

Date of hearing: 7th August, 1985.

This petition under section 22‑A (8) (g) read with Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations, 1973 has been submitted by S. Mumtaz Ahmad, President, State Life Workers Union, Punjab, Lahore, against Mubarak Ahmad and others of State Life Insurance Corporation of Pakistan. The petitioner has stated that he had filed a complaint under section 53 of the I.R.O. in the Commission which is pending and that the bench before whom that petition is pending had ordered on 8‑1‑1985 that the respondent may proceed with the domestic enquiry but refrain from passing any adverse final order against the complainant and 8 others till the next date of hearing. The case was fixed before that bench on 22‑1‑1985 and a status quo order was passed by that bench on that day. It is stated by the petitioner that the management had appointed an enquiry officer who had taken up some proceedings against the complainant but as yet no proceedings have been initiated against the 8 persons listed in the complaint.

2. The petitioner has pointed out that the Enquiry Officer Mr. Hafeez Malik has now been replaced by‑ Mr. Abdul Shakoor Khan but the newly appointed Enquiry officer has not shown any documents to prove that he has been appointed by the competent authority. The respondent No. 1 in order to victimise the petitioner and 8 other workers had suspended them from their service w.e.f. 31‑7‑1985 for a period of 14 days. This period has been extended after the expiry of each period of 14 days although there is an agreement between the management and the C.B.A. Union which was arrived at in the meeting held on 26th and 27th of January, 1973 to the effect that workers cannot be kept under suspension for more than 14 days. This act on the part of the management amounts to victimisation and continuing act of unfair labour practice particularly under the circumstances that no enquiry has been initiated against 8 persons involved in the matter and the enquiry has not been completed even after 6 months. He referred to the Standing Orders Ordinance, 1968 which provides that a worker cannot be suspended for a period exceeding 4 weeks.

3. It has been submitted that the suspension for an indefinite period without any cause is a direct punishment to a worker and as the workers are being harassed and intimidated in order to compel them to withdraw the complaint of unfair labour practice pending in the Commission and the criminal case registered against the respondents in the Police Station, Mozang Lahore with respect to the same occurrence of assault which is the subject‑matter of the complaint of unfair labour practice pending in the Commission.

4. It has been prayed that the respondent No. 1 may be prohibited and refrained from committing unfair labour practice by suspending the petitioner and 8 office‑bearers and workers of the C.B.A. Union. The petitioner has also stated that the Commission's order, dated 22‑1‑1985 ordering status quo has been violated which is punishable under section 22‑C of the I.R.O., 1969. The enquiry officer who was appointed in the first place recorded evidence of some witnesses in a period of 4¹/2 months. When cross‑examination of one witness was going on he was substituted with another Enquiry Officer without any specific order of the Chairman. Mr. Nisar Hussain another Senior Officer handed over the enquiry papers to the newly appointed enquiry officer, Mr. Abdul Shakoor Khan in order to obtain one‑sided report favourable to the management.

5. It has been pointed out that the appointment of the new Enquiry officer is illegal and without any lawful authority and that he is also biased against the complainant and is conducting the proceedings in an illegal and partial manner under the instructions and directives of Mr. Nisar Hussain, Mubarak Ahmad and Mr. Mahboob Siddiqui. He disallowed the representation of the workers against the established rules and practice and the request made for the change of Enquiry Officer by the complainant was not accepted and the Enquiry Officer summoned all the 9 persons and kept them waiting and started proceedings against the complainant and threatened other accused that all statements in the complaint would be recorded against them in their cases.

6. It has been stated that the same matter about which Mr. Abdul Shakoor Khan has recorded statements is sub judice before this Commission and an order of status quo was passed on 22‑1‑1985. It is "'also sub judice before the Court of Mr. Bashir Ahmad Magistrate Ist Class in which Nisar Ahmad, Mahboob Siddiqui and Jamiluddin are also accused. He has also referred to the past conduct of Mr. Abdul Shakoor Khan stating that he was transferred to Hyderabad on serious charges of misconduct and corruption. It has been prayed that the respondent No. 1 be prohibited and refrained from suspending the petitioner and 8 persons mentioned in the main complaint and from extending the order of suspension. It has also been prayed that respondent No. 1 may be directed to immediately reinstate the petitioner and 8 workers and the operation of the order issued on 2‑7‑1985 suspending the petitioner and 8 other workers may kindly be stayed till the final disposal of the main complaint.

7. I heard the petitioner and his learned counsel on 1‑8‑1985 and directed that the petition should be sent to the respondents with the directions to appear before me at Lahore on 6‑8‑1985 and to show cause as to why the operation of suspension order of the employees for more than 14 days should not be suspended. They were also directed to show cause as to how the enquiry officer has been changed without authorisation of the Chairman of the Corporation and ordered the withholding of the enquiry in the meantime.

8. On 6‑8‑1985 the learned counsel for the respondent submitted preliminary objections on the petition saying that the petition does not disclose any likelihood of commission of offence of unfair labour practice and as such it was not a case of interference by this Commission. It was also stated that the petitioner has approached the Commission with unclean hands and that the petition was barred by laces. The prohibitory order was issued without adherence to the mandatory pre‑requisites laid down under Regulation 32 and also obstructs and defeats the purpose of the statutory provisions giving jurisdiction to the employer to proceed against its delinquent employees. It was also pointed out that the Commission cannot exercise the jurisdiction under Regulation 32 in order to stay the disciplinary proceedings and in view of the fact that the ingredients of Regulation 32 were not fulfilled, the prohibitory order deserves to be recalled as the domestic enquiry could not be stayed by the Commission. It was prayed that the prohibitory order, dated 1‑8‑1985 be recalled.

9. On 7‑8‑1985 I heard the arguments of the parties. The learned counsel for the petitioner submitted that he had filed a complaint on 8‑1‑1985 under section 15 read with regulation 32(2) and an order was passed by the learned Bench to the effect that the respondents could proceed with the domestic enquiry but refrain from passing any adverse final order against the complainant and 8 other persons listed in the complaint till the next date of hearing. On the next date of hearing i.e. 22‑1‑1985 the comments were received by the learned Member and he passed an order of status quo meaning thereby that the enquiry proceedings should be stopped.

10. He stated that on 26‑12‑1984 the President of the Union was beaten and F.I.R. was lodged. The same matter is sub judice before the Court of Mr. Muhammad Bashir, Magistrate Ist Class in which Nisar Ahmad, Mahboob Siddiqui and Jamiluddin the present accused are also accused. It has been stated that on 15‑5‑1985 Mr. M. Hafiz Malik the Enquiry Officer was changed and another Enquiry Officer Mr. Abdul Shakoor Khan was appointed. This Enquiry Officer was transferred to Hyderabad on serious charges of misconduct and corruption and in order to oblige the management he has threatened the workers to report against them. He stated that the workers were suspended on 2‑1‑1985 and after 14 days, this period is being extended against the rules.

11. He stated that the petitioner who is the President of the Union has been suspended and there being no other union in the establishment, it implies that the activities of the union have been suspended. He is being intimidated to leave the trade union as he is getting only 50% pay. He stated that the respondents have been pressurising the office bearers to leave the trade union activities so that they should have trade union of their own choice. He stated that the enquiry was pending for the last 8 months and pointed out that there was no question of laches in this case as they had represented against the extension of the enquiry when it was first extended from 16‑1‑1985. He stated that the enquiry officer was changed and in view of this fact the enquiry be quashed as it is biased.

12. The learned counsel for the respondent however, stated that the order of status quo was passed on 22‑i‑1985 but the petitioners were suspended on 2‑1‑1985. This legal status has been maintained and not changed as no order has been passed so far. He cited P L D 1983 Lah. 120‑125 in this connection and pointed out that legal grievance only arises against whom a decision has been passed but not from the proceedings and in this case the proceedings were still continuing and no decision has been given and as such the petitioners have no legal grievance against the respondents. He stated that there was no law that the enquiry officer, should have been appointed by the Chairman nor it was incumbent on the employer to show as to how the enquiry officer has been appointed. He produced a copy of the letter, dated 9th of May, 1985 addressed by Mr. M. Hafeez Malik to the Chairman, State Life Insurance Corporation of Pakistan saying that he was appointed as Enquiry Officer against Mr. Mumtaz Hussain Bokhari and 8 others and that he had visited Lahore in connection with the enquiry on different dates but the enquiry could not proceed because of the delaying tactics of the delinquent employees. He had pointed out that his visit not only entails heavy expenditure but also results in his frequent absence from the zone, which results in the eventual loss of business. He therefore, requested that the enquiry may be entrusted to some other executive. Mr. Abdul Shakoor Khan was appointed as' an Enquiry Officer with the approval of the Chairman. The learned counsel denied that the Enquiry Officer was either biased or prejudiced to any of the accused persons or that he has deprived any worker from making a statement in his defence or that he has infringed any procedure of natural justice. He has recorded all the statements made before him in the presence of the accused workers and that the Enquiry Officer has to ensure that facts relating to the incident and the alleged acts of misconduct are brought on record.

13. The learned counsel further pointed out that there was no likelihood of any unfair labour practice being committed as alleged in para. 10 of the petition. He stated that sections 15 and 53 and Regulation 32 have independent jurisdictions. He stated that the petitioner has not mentioned any events linked with the unfair labour practice and it was not therefore, an act of unfair labour practice and they cannot resort to Regulation 32(2) He stated that the employees were suspended on 2‑1‑1985 and the suspension period of 14 days expired on 16‑1‑1985. He stated that the first application was filed by the petitioner on 22‑1‑1985 i.e. 5 days after the expiry of 14 days period of suspension and as such they acquiesced in the suspension for 14 days. He stated that the petition also suffers from laches and cited P L D 1982 Lah. 420, 1979 P L C 293 and also cited 1983 P L C (C.S.) 73 and 1978 S C M R 367. He also pointed out that the principle of res judicata also applies in this case as the petitioners have not agitated this point in the application, dated 22‑1‑1985.

14. He referred to the agreement, dated 26th and 27th January, 1973 in which it was laid down that the suspension period shall terminate after 14 days and pointed out that this settlement cannot have overriding effect on the law and that no parties can negotiate the provisions of law. He cited 1975 P L C 594 in which it was held that the settlement clause to the effect that there would be no lay‑off after expiry of 14 days commencing from particular date and that no termination proceedings would ever be taken against laid‑off workmen was held to be repugnant to statutory provisions of Standing Order 11 and hence void.

15. He also pointed out that the agreement was not arrived at during the conciliation proceedings nor was it in the prescribed manner nor a copy of the same was sent to the Provincial Government, Conciliator or other prescribed persons. He cited 1975 P L C 98 in which it was held that mere admission of parties could not confer solemnity of settlement on such agreement. He also cited 1981 P L C 47 in which it was held that an agreement arrived at between the parties workers and employer not through conciliation, neither drawn up in prescribed form nor copies sent to the prescribed authorities cannot be treated as settlement enforceable under section 34. He also referred to 1975 P L C 98 in which it was held that mere admission of a union President to have signed the settlement does not confer on an agreement solemnity for the purpose of section 2(xxiv) and the agreement in question was not a settlement.

16. He stated that suspension was not an irreparable loss and pointed out P L D 1981 Lah. 752. He stated that the Commission could not issue the order of suspension of enquiry without finding prima facie existence of a case of unfair labour and without taking procedural action under Regulation 32(1) & (2) practice as referred to 1980 PLC 752. He stated that it was the sole discretion of the management to conduct disciplinary proceedings against its employees. The learned counsel stated that the petition has been made in order to prevent the management from exercising its right of taking disciplinary action. He cited 1984 PLC 716 in which an application made in similar circumstances was dismissed. He stated that the disciplinary proceedings cannot be stayed and that the change of enquiry officer was not an act of unfair Labour practice. He cited P L D 1976 Lah. 611, 1983 P L C 1090, 1980 L L C 49. He stated that the Court could only see if the enquiry was proper and the conclusion arrived at was just on the basis of evidence on record and that the Court could not sit in appeal on Enquiry Officer. (1969 P L C 216) 1969 P L C 691, P L D 1975 S C 24‑25. He also cited P L J 1975 Tr. Cases 432 in which it was held that the employees should wait for holding of enquiry which is the managerial function and that filing of an application under section 25‑A the moment a charge‑sheet is given by employer was premature and undesirable.

17. The learned counsel for the petitioner however, pointed out that the authorities quoted by the learned counsel for the respondents are not related to the points in question and were not applicable in this case. He stated that in view of the status quo order, the respondent was not competent to hold enquiry proceedings. He pointed out that the unfair labour practice was continuing in the shape of suspension of the employees and that no date has been fixed for holding of enquiry against the 8 employees and that all these acts are being taken by the management to pressurise the union to discontinue the trade union activities. He again referred to the settlement under which the suspension could not continue beyond 14 days and stated that the settlement was still in force.

18. This petition under section 22‑A (8)(g) read with Regulation 32(2) was submitted before this Bench although the petition earlier filed by the petitioners and numbered 4(7)/85 and 24(7)/85 was pending before another bench. I shall, therefore, deal with this petition only and the decision on this petition shall have no effect on the cases filed by the petitioner before other bench on 22‑1‑1985, as I am not aware of the contents of those petitions.

19. The allegations in this petition are that the management had appointed an Enquiry Officer who had taken some proceedings against the complainant but no proceedings worth the name have been initiated against 8 persons listed in the petition. It has also been stated that the Enquiry Officer has been changed without authorisation from the competent authority. The main allegation in the complaint is that the respondents in order to victimise the petitioner and 8 others suspended them from their service for a period of 14 days w.e.f. 2‑1‑1985 and that the suspension period is being extended after the expiry of 14 days and that this continued suspension of the petitioner and 8 workers amounts to unfair labour practice which is a direct punishment and the respondent No. 1 is utilising the weapon of suspension in order to harrass and victimise the workers to compel them to withdraw the petition of unfair labour practice pending in the Commission and the criminal law case registered against the respondents in the Police Station Mozang, Lahore.

20. The suspension of employees is not an act of unfair labour practice as is evidenced from the provisions of section 15 of the I.R.O. Even if it is admitted that the management have suspended the petitioner and 8 other workers in order to remove them from employment then in that case the petitioners are required to show that the employer had done so for the reasons that the petitioner and 8 other workers are or propose to become or seek to pursuade any other person to become a member or officer of a trade union or participate in the promotion, formation or activities of a trade union. There being no such allegation in the complaint the ingredients of clause (d) of section 15 are not fulfilled and the application does not stand on its feet.

21. It has been correctly pointed by the learned counsel for the respondents that the appointment of an Enquiry Officer was the prerogative of the management and naturally the delinquent employees cannot force the management to appoint an Enquiry Officer of their own choice. There is also no hard and fast rule or any law to suggest that an Enquiry Officer once appointed cannot be changed under any circumstances. In this case the Enquiry Officer has given his reasons which to my mind are very cogent and in view of that application the management changed the Enquiry Officer. It has been pointed out by the learned counsel for the respondents that the newly appointed Enquiry B Officer has been duly authorised by the competent authority. The question of delay in the proceedings is also not on account of the Enquiry Officer as is evident from his letter, dated 9‑5‑1985 addressed to the Chairman that he had visited Lahore on a number of occasions but due to the delaying tactics of the delinquent employees the enquiry could not proceed.

22. I find that the appointment of an Enquiry Officer and the change of Enquiry Officer is the right of an employer as it is not probable that an Enquiry Officer once appointed in lengthy cases should continue to hold enquiry for an indefinite period.

23. The petitioner has referred to the settlement, dated 26th and 27th of January, 1973 that no worker can be kept under suspension for more than 14 days and that the management in violation of that settlement has continued suspension for more than 14 days. The agreement referred to was not a settlement arrived at through conciliation C proceedings and a copy thereof was not endorsed to the authorities concerned and as such in view of a number of rulings quoted by the learned counsel for the respondents this agreement is not a settlement in terms of section 2(xxiv) of the I.R.O. and has therefore, no force whatsoever.

24. The suspension of these employees is not an act of unfair labour practice and does not amount to victimisation. There are a number of rulings on the point of holding of an enquiry which is a managerial function and that an office‑bearer of a union has no license do commit misconduct and that mere allegation of unfair labour practice cannot take place of a proof and that an employee cannot stop an employer from holding a departmental enquiry into the misconduct.

25. In view of the above discussions I find that the petitioner has failed to make out any case of unfair labour practice on account of which a prohibitory order could be issued. The petition is, therefore, dismissed and the stay order, dated 1‑8‑1985 is recalled.

1. A.

Order accordingly.

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