PLJ 2013 Tr.C. (NIRC) 138
[National Industrial Relations Commission,
[National Industrial Relations Commission,
Present: Bashir Ahmed Memon, Member
RAO MAZHAR ALI KHAN--Petitioner
M/s. HABIB BANK LTD. through its President--Respondent
No. 4A (1)/2013/K/24(1)/2013-K, decided on 16.5.2013.
NIRC (P&F) Regulations, 1973--
----Regul. 32(2)(c)--Industrial Relations Act, 2012, S. 54(2)--Stay order--Managerial functions of employer cannot be restrained--Unfair labour practice--Received illegal gratification for providing job in HBL--Online transit through account of wife of petitioner--Petitioner had failed to satisfy as to for what purpose amount was received--Validity--In the case in hand there were not allegations against petitioner that he had made any forgery with Bank but on other had it was also not expected from a bank employee to commit fraud with people and extort money for providing job and a person of such unimpeachable and unreliable character being employee of a Bank could not be allowed to carry out illegal activities during bank service--Petitioner had failed to make out a prima facie case for grant of stay order--Application was dismissed. [P. 144] A & B
Mr. M.Siddique Malik, Labour Representative for Petitioner.
Mr. Faisal M. Ghani, Advocate for Respondents.
Date of hearing: 16.5.2013.
The present petition under Section 54(2) of the Industrial Relations Act, 2012 was brought by the petitioner who claims himself to be permanent workman and the employee of respondents since 15.08.1991 and is also notified President of United Workers Front of UBL Pakistan, which is a registered trade union of the workers actually employed and engaged by the respondents and the petitioner's union is one of participant in the referendum which is under process but has been stayed byHonourable Peshawar High Court. It has been stated by the petitioner that the respondent sent him show-cause notice dated 13.12.2012 through ICS courier services, wherein it has been alleged that he has received gratification through his wife's account. The petitioner claims that his wife holds her independent Bank Account which has no concern whatsoever with him as she is working as independent property dealer. Copy of notice has been appended as Annex.A/1. It has been further stated that another Memo. dated 11-12-2012 is kept on record of respondent wherein it has been observed that:
"In the light of investigation Division finding/observations, you are instructed to immediately refund the amount to the complainants or the complainant may be advised to lodge FIR with FIA. (Annex.A/2)"
It has been stated by the petitioner that vide his letter dated 26-12-2012 he requested the management to supply the certified copy of complaint if any against him and without supplying him copy of complaint the petitioner has been issued show-cause notice dated 12-12-2012 which was served upon him on 18-12-2012 and also the same was served upon the petitioner by hand on 26-12-2012 but the copy of the complaint was neither granted nor issued by any mode of service which proves mala fides of management to harass the petitioner. It has been stated by the petitioner that being notified President of United Workers Front of HBL, is participant in the referendum and the management has started victimizing, issuing threats, show-cause notices which are directly unconcerned with the petitioner, which is an attempt of compelling the petitioner under the garb of disciplinary proceedings and the management wanted to dismiss, discharge or remove the petitioner from employment by hook or crook and the management is also threatening him of dire consequences, hence the instant petition has been brought for getting direction and restraining them from taking such action.
2. Alongwith the petition the petitioner has also filed application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 for interim stay order and vide order dated 07-01-2013 the interim stay order was passed restraining the respondents not to take any adverse actions against the petitioner.
3. The respondents were served and they have filed reply statement with preliminary legal objections and counter affidavit denying any act of unfair labour practice on their part. It has been vehemently stated that no cause of action in respect of unfair labour practice has been made according to the pleadings and it has been stated that the respondents do not intend to commit any act of unfair labour practice. It has been stated that under Section 54(e) of IRA, 2012 the petition can only be filed for unfair labour practice and none of the allegations fall under the ambit of unfair labour practice. It has been stated that the petition filed is not maintainable in law as initiation of disciplinary action on commission of misconduct, termination, retrenchment, transfers, retirement etc. are all contracted and legal rights of the employer and such managerial functions of the employer cannot be restrained under the garb of a petition alleging unfair labour practice and initiation of disciplinary action in case of commission of acts of misconduct and any exercise of such statuary right cannot be construed as an act of unfair labour practice ipso facto and entire petition is based on wild, bald and general allegations and claims and no case of grant of application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 has been made out and the petitioner is merely seeking a general injunction from this Bench of Commission and petition on this sole ground is not maintainable and is liable to be dismissed. It has been stated that the petitioner claims for blotless record but this claim of the petitioner is false statement and the petitioner has chequeredhistory which includes financial irregularities and certain irregularities have been disclosed in para-1 of the reply statement. It has been stated that it is claimed by the petitioner that he is being harassed as the petitioner is participant in the referendum but the management has no concern as it is between the contesting unions and employer has no role. It has been stated that complaint (Annex.R/2) was received by the President of Bank from Saleem Akhtar and Ghulam Yasin and investigation was carried out by the Bank and in support of claim those complainants have submitted detail of payment made by them through on line transfer in the name of Mst.Huma Mazhar, wife of petitioner. It has been stated that disciplinary action has been initiated against the petitioner upon a complaint where the petitioner has taken illegal gratification with assurance to accommodate the two individuals with employment in the Bank and on 02-06-2011 they deposited the amount in account of Mrs.Huma Mazhar's Account No. 11017900075303 maintained at Al-Badar Square Branch Karachi from HBL Bunder Road, Larkana and Sir Shahnawaz Bhutto Road,Larkana. The complainants have pointed out that actually they were known to one Mr.Zaid Ahmed (an ex-employee of Zarai Taraqiatti Bank) being known to the complainants had assured the complainants that petitioner will accommodate them and provide jobs in HBL in lieu of financial consideration. Those complainants have pointed out that during the month of May, 2011 they were introduced to petitioner for providing job in the respondent Bank and investigation was carried out and it was revealed as under:
(a) CD individual Account No. 11017900075303 titled Mrs. Huma Mazhar (wife of petitioner) is being maintained at HBL Al-Badar Square Branch Karachi. After checking statement of account for a period 01 January, 2011 to 22nd November, 2012 it was noted that on 02 June, 2011 an amount of Rs.2,000,000/- was credited in the account through online transfer from Bander Road Branch Larkana and Sir Shah Nawaz Bhutto Road Branch Larkana. Later on the amount was withdrawn through cheques and ATM."
It has been further stated that in order to ascertain the petitioners point out he was advised through DGM Operations and Service Quality to attend investigation office on 04-12-2012 followed by letter dated 05.12.2012 but the petitioner did not appear rather sent letter demanding copy of the complaint. The petitioner was again advised by letter dated 06-12-2012 to attend the office so that complaint may be discussed but the petitioner failed to participate in the investigation. It has been stated that from the acts of receiving illegal gratification, willful defaming reputation of the Bank, transaction in spouses account beyond known source of income and act subversive of discipline, these acts constitute misconduct and consequently disciplinary proceedings were initiated against the petitioner and initiation of disciplinary action is a legal right of the employer and legal right of initiation of disciplinary action has to be taken to its logical conclusion. The petitioner was afforded full and fair opportunity during the domestic inquiry in which he fully participated, copy of inquiry proceedings has been filed as Annex.R/4. It has been stated that the petitioner has recorded his full satisfaction to the inquiry and also signed the pages but willfully with mala fide intention he wrote a letter extending allegations contrary to the evidence in the inquiry proceedings and the said letter alongwith reply has been filed as Annex.R/5 and R/5a. The respondents have vehemently denied that any unfairlabour practice has been committed nor do they intend to commit the same in future. The referendum is between the participating unions and employer is not a party to it.
4. The petitioner has filed affidavit-in-rejoinder, wherein the very same facts has been reiterated and further stated that the matter is on mixed question of law and facts and it was advisable to record evidence of both the parties and unless the evidence is recorded the matter could not be concluded.
5. I have heard arguments of Mr. M. Siddique Malik, Labour Representative appearing for the petitioner and Mr. Faisal Mahmood Ghani, learned counsel appearing on behalf of the respondents.
6. Mr. Siddique Malik, Labour Representative for the petitioner during the course of his arguments has submitted that there is mixed question of facts and law and in such a situation interim stay order be confirmed and the parties be directed to produce their evidence. It was argued that the petitioner is permanent employee working since 1991 and is also President of United Worker's Front of HBL and application for referendum is pending before learned RITU and during the pendency of referendum no worker is to be terminated. It was contended that on 13-12-2012 the respondents sent show-cause notice through TCS wherein it has been alleged that President of Bank received a complaint from Saleem Akhtar and Ghulam Yasin that the petitioner has received illegal gratification from them for providing them job in the HBL. It has been further argued that alongwith affidavit-in-rejoinder an application submitted to SHO, Defence Police Station has been produced wherein the said complainants namely Saleem Akhtar and Ghulam Yasin have stated that one Zaid Ahmed Mughal has received the amount of Rs.100,000/- (one lac) through online transit and another amount of Rs.2,000,000/- (twenty lacs) was paid to Zaid Ahmed Mughal through Account No. 11017900075303 of Mst. Huma, wife of RaoMazhar Ali, petitioner having on 02-06-2011 and these payments were made by them for getting job in ZTBL and in view of above it was argued that the complainants in their initial complaint made to SHO, Defence Police Station further alleged that amount was paid to Zaid Ahmed Mughal for providing them job but subsequently during their statement before the Enquiry Officer of HBL they have changed their version and have stated that amount was paid to petitioner through his wife's account. It has been argued that there has been no fair and impartial inquiry and the petitioner was not provided with copy of complaint made against him bySaleem Akhtar and Ghulam Yasin. It was also argued that the petitioner has filed C.P. No. 3965 of 2011 before Honourable High Court of Sindh against the Bank and contempt proceedings have been issued against the Bank officials and in order to avoid any action in the complaint the respondents have issued show-cause notice on fictitious and flimsy allegations. It is also argued that since the petitioner has challenged the referendum the respondents have started pressure tactics and it is a fit case where interim stay order be confirmed.
7. Mr. Faisal Mahmood Ghani, learned counsel for the respondents has argued that the petitioner wanted recording of evidence on the ground that referendum proceedings are pending but the petitioner's union has never remained CBA and the documents which have been filed (Annex. A/13 to A/19) with affidavit-in-rejoinder have no concern with the petitioner's case. It is also not a fact that the petitioner has neat and clean service record as the petitioner on different occasions was issued show-cause notice and was reprimanded and money suit was also field against him which was lateron withdrawn as the amount was paid by the petitioner. The petitioner was served notices thrice for unauthorized absence and it was, therefore argued that it is not correct that the petitioner has blotless record. It was argued that the petitioner's claim that his wife runs the business of property of Real States, and had the petitioner's wife had received amount of Rs.200,000/- in respect of some property transaction in that case the petitioner must have produced any such agreement. It was submitted that petitioner's reply to show-cause notice was found unsatisfactory as such domestic inquiry was ordered where the petitioner had fully participated and signed each page of inquiry and thereafter raised the objection on the inquiry proceedings and since the inquiry has been completed as such it is beyond the jurisdiction of this Bench of Commission to restrain the respondents from performing their managerial right. It has been argued that initially the petitioner was called to discuss the matter and since he failed to appear before the Bank Authority it is why he was issued show-cause notice.
8. I have given my anxious consideration to the arguments advanced by the partiers and have gone through the relevant record and case law relied upon.
9. It has been established that the amount of Rs.200,000/- was received in petitioner's wife account but the petitioner has failed to satisfy as to for what purpose this amount was received though the petitioner claims that she is working as property dealer but has not been able to give detail of her business or any such connection of his wife with complainants Saleem Akhtar and Ghulam Yasin.
10. No doubt the complainants in their application before SHO, Defence Police Station have stated that amount was paid by them to Mr. Zaid Ahmed Muhgal but in the said application it has been further stated that an amount of Rs.200,000/- were sent in account of Mst. Huma Mazhar. Had the amount was to be paid to Mr. ZaidAhmed Mughal then in that case amount should have not been sent in the account of Mst. Huma Mazhar. The two complainants during their statement before Enquiry Officer have undergone lengthy cross-examination but the petitioner has miserably failed to shaken their veracity. The two complainants have clearly identified the petitioner before the Enquiry Committee regarding their application to SHO, Defence Police Station. They have clarified that in the month of May, 2012, they were introduced by Mr. Zaid Ahmed Mughal with Rao Mazhar Ali (petitioner) and it was disclosed that he was an Army Man (petitioner) but later on SHO had called the Zaid Ahmed Mughal and it was disclosed by Mr. Zaid Ahmed Mughal that the petitioner was Bank employee, therefore, they have made complaint to the President against the petitioner.
11. I have also considered the fact that in the case in hand there are not allegations against the petitioner that he has made any forgery with the Bank but on the other hand it is also not expected from a Bank employee to commit fraud with people and extort money for providing job to them and a person of such unimpeachable and unreliable character being employee of a Bank could not be allowed to carry out these illegal activities during his Bank service.
12. The contention that the management wanted to keep the petitioner away from referendum merits no consideration the management has no concern with the referendum as such this contention cannot be accepted.
In view of above facts and circumstances I am of my considered opinion that the petitioner has failed to make out a prima facie case for grant of stay order. Accordingly the application under Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973 is dismissed and the matter is fixed for evidence. Put off to 07-06-2013 for filing affidavit-in-evidence by the petitioner.
(R.A.) Application dismissed