Sunday, 19 January 2014

Shah Faisal V. Nestle Pakistan (Unfair Labor Practice Case)

PLJ 2013 Tr.C. (NIRC) 105
[National Industrial Relations Commission Karachi]
Present: Bashir Ahmed Memon, Member
NESTLE PAKISTAN LIMITED through its Managing Director
& 2 others--Respondents
No. 4A (04) of 2013-K & 24(4) of 2013-K, decided on 9.4.2013.
Industrial Relations Act, 2012--
----S. 54(e)--Unfair labour practice--Act about welfare of workmen--Allegation of misappropriation of cash amount was leveled--Petitioner does not fall within category of workmen--Petition was not maintainable--Power of NIRC to take cognizance of an act of unfair labour practice either on part of employer or on part of employee--Case in hand was checked and huge amount was found misappropriated--Amount was repaid--Adverse action towards employment--Validity--Issuance of show-cause notice and initiation of disciplinary action was not an act of unfair labour practice and no managerial and administrative power could be challenged under garb of unfair labour practice.         [P. 107] A
Mr. Hafiz Waqar Umer, Advocate for Petitioner.
Mr. Faisal Mahmood Ghani, Advocate for Respondents.
Date of hearing: 9.4.2013.
The present petition has been brought by the petitioner named above under Section 54(e) of the IRA, 2012 claiming himself to be an employee of respondent management having joined the management on 01-01-1999 as permanent employee though he was designated as officer but practically he was performing clerical duties. He has to assist the Manager of his Department and all the said work which was being done was of clerical and manual nature and thus was in fact workman as defined in Standing Orders Ordinance, 1968. It has been stated by the petitioner that he always performed his duties with all satisfaction and due to his remarkable performance the Authority appreciated and rewarded the petitioner by giving him salary increments from time to time. Such certificates have been annexed asAnnex.P/3 & P/4. It has been further stated by the petitioner that he always performed his duties and responsibilities as workman and no body was under his control and he was not having the powers of hire and fire. It has been stated that the management of respondents is not happy with the petitioner and he has been again and again harassed by the management on one and the other pretext so that he may not be able to act about welfare of the workmen and the management has always taken extra duty from him but he was not paid any overtime of extra hours. It has been stated that on account of petitioner's welfare of the workers false allegations were levelled and on the basis thereof on 10-12-2012 when the petitioner was going to perform his duty the management illegally gate stopped, the petitioner without any letter and he was verbally informed that he has been suspended and was told that either he submits his resignation or the management has right to dismiss him from service but the petitioner refused to obey the verbal orders and then the petitioner was called on 04-01-2013 in office and was given show-cause notice dated 31-12-2012, wherein baseless charges regarding misappropriation of cash amount was levelled. The petitioner refuted the allegations. Photo copies of show-cause notice and reply have been filed as Annex.P/5 and P/6. It is stated by the petitioner that the management without any justification has appointed Enquiry Officer who without holding the inquiry intends to get the petitioner dismissed from service by holding him guilty of misconduct.
2.  Alongwith main petition an application for stay order has been filed by the petitioner and while admitting the petition interim stay order was granted in favour of the petitioner and the respondents were restrained from taking any adverse action towards employment of the petitioner on the basis of show-cause notice.
3.  On notice the respondents filed their comments, preliminary legal objections and counter affidavit denying the allegations levelled by the petitioner. It was asserted by the respondents that no case of unfair labour practice as defined under Section 31 of the IRA, 2012 has been alleged. In the appointment letter dated 01-10-1999 it was clearly mentioned that the petitioner was appointed in the management cadre, copy of same has been produced as Annex.R/1. The petitioner was lastly working as System Support Associate drawing the salary of Rs.23,785/-, which is evident from his salary slip produced as Annex.R/3, as such petitioner does not fall within the category of workman, therefore the petition is not maintainable and same is liable to be dismissed. It is further asserted that only wild, bald and general allegations and claims have been made merely to seek a general injunction from this Bench of Commission, therefore the petition on this ground is also not maintainable. It was claimed by the respondents that this was not first time that the petitioner was being proceeded for disciplinary action. He was caught watching obscene/pornographic moves to which he confessed in writing vis a confession letter dated 13-04-2004 (Annex.R/4). Now the petitioner has been served with show-cause notice as he was caught in an incident where he had misappropriated the company cash in his custody amounting to Rs.103,000/- and upon interrogation confessed to the crime vizconfession letter dated 08-12-2012 (Annex.R/6) with commitment to return the cash by 10-12-2012, as such this is purely a case of initiation inquiry proceedings which has nothing to do with acts of unfair labour practice, hence the petition is not maintainable and the same is liable to be dismissed.
4.  I have heard the arguments of both the learned counsel for the parties at very length and have gone through the entire material placed on record.
5.  The present petition has been filed under Section 54(e) of the IRA, 2012, which empowers this Bench of Commission to take cognizance of an act of unfair labourpractice either on the part of employer or on the part of employee. In the whole body of the petition not a single word about any act of unfair labour practice has been claimed or alleged by the petitioner. Even the petitioner has not disclosed about his affiliation with any trade union or any trade union activities performed by him which has caused annoyance to the management for taking any illegal action against him. The petitioner's cash in hand was checked and an amount of Rs. 103,000/- was found misappropriated and admittedly this amount was repaid by the petitioner and thereafter he has been served with show-cause notice and his reply was not found satisfactory therefore the management has initiated inquiry proceedings. Thereafter the petitioner approached this Bench of Commission apprehending an adverse action towards his employment.
6.  Issuance of charge-sheet/show-cause notice and initiation of disciplinary action is not an act of unfair labour practice and no managerial and administrative power could be challenged under the garb of unfair labour practice.
7.  It has been observed by their Lordships in case reported in 2004 PLC (CS) 90 that:
"Offence relating to individuals--Offences against society-Concept of punishment--Principles.
            One of the concepts of punishing an offender is to deter other mischief-mongers from committing offences in order to bring harmony and peace in society. Courts of law while administering justice in offences relating to individuals take into consideration reformatory concept of punishment, but in offences against society, no sympathy can be shown to wrong-doer as leniency shown means a message to the alike minds that they can also get away, if they are caught. Persons committing such offences should be snubbed at the very outset and be dealt with iron hands at appropriate time, otherwise this malady would plague the whole society."
For the aforesaid reasons I see not merits in the case which stands dismissed accordingly.
(R.A.)  Petition dismissed

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