Sunday, 19 January 2014

Unfair Labour Practice Petition Dismissed against Sui Gas

PLJ 2013 Tr.C. (NIRC) 151
[National Industrial Relations Commission Islamabad]
Present: Baqir Ali Rana, Member
ATIF AMIN--Petitioner
versus
SUI NORTHERN GAS PIPELINES LTD. through its Managing Director SNGPL, Lahore & others--Respondents
Case No. 4B (121)/24-B(63) of 2012, decided on 22.4.2013.
Industrial Relations Act, 2012--
----Ss. 31 & 33--Unfair labour practice--Dismissal from service--Allegation of mis-appropriation and embezzlement of huge amount by using old payment vouchers--Guilty of charge--Non-service of mandatory grievance notice on employer rendered as non-maintainable--No application for condonation of delay--Neither service of any grievance notice was mentioned nor copy of any such notice was placed on record which fact had not been denied by petitioner--Commission could not agree for reason that it is basic principle that if a mandatory condition for exercise of jurisdiction by a Court is not fulfilled then entire proceedings become illegal and suffer for want of jurisdiction--Alleging unfair labour practice on part of the management, as grievance notice, even then such grievance petition was time barred by 18 days having not been filed within stipulated period of limitation--No application for condonation of delay had even been filed till date nor each day's delay had been explained which rendered petition as incompetent--Petition was dismissed.            [P. 153] A, B & C
Mr. Abdul Hafeez Amjad, Advocate for Petitioner.
Mr. Salim Baig & Miss Sumera Fazil, Advocate for Respondents.
Date of hearing: 22.4.2013.
Order
Petitioner Atif Amin has filed this petition under Section 33 of IRA, 2012 questioning order dated 06.01.2012 of respondents management regarding his dismissal from service on the allegation of embezzlement and mis-appropriation of company's funds. According to the petitioner the order of his dismissal from service is based on vague and time barred charge sheet, improper inquiry and violative of procedure and against the material on record. Being illegal, unjust and without lawful authority, he prayed for setting-aside of the same and also his reinstatement in service with all back benefits.
2.  The respondents' management resisted the petition on the ground that no grievance notice as required under the law was served upon the respondent management before filing the petition nor any application for condonation of delay in filing the petition has been moved and as such the petition which is patently time barred is liable to be dismissed. The petition being not maintainable on facts and law dismissal of the same was thus prayed.
3.  I have heard the learned counsel for the parties on the preliminary legal objections raised by the respondent management and also perused the record.
4.  It was argued by the learned counsel for the respondent management that in the petition neither the service of grievance notice has been mentioned nor copy of any such notice has been placed on record, therefore non-service of mandatory grievance notice on the employer rendered the petition as non-maintainable. He next argued that order of dismissal of the petitioner was made on 06.01.2012 whereas the petition was filed on 12.07.2012 which is hopelessly time barred and even no application for condonation of delay has been moved. Lastly, the petition having been filed without service of mandatory grievance notice, and barred by time he urged for dismissal of the same. Reliance was placed on 2006 SCMR 783.
5.  Conversely the learned counsel for the petitioner repelled the arguments of the opponent counsel by saying that previously petitioner had filed a petition complaining the commission of unfair labour practice by the respondent management in connection with service and labour activities of the petitioner which petition was later on withdrawn by him on account of his dismissal from service and as such the previous petition containing the allegation of unfair labour practice on the part of the employer would amount to grievance notice. He next argued that after the withdrawal of petition under Section 31 of IRA, 2012, the instant petition filed on 12.07.2012 was well within time. Lastly the objection being not sustainable he urged for disposal of the main petition on merits giving opportunity to lead evidence to both parties in support of their respective contentions.
6.  Admittedly, the petitioner had filed a petition under Section 31 of IRA, 2012 alleging the commission of unfair labour practice on the part of the respondent's management. Alongwith the petition an ad-interim application was also moved. Ad-interim application was dismissed vide order dated 04.06.2012 passed by the learned Member of NIRC observing that "the petitioner was charge sheeted on allegation of mis-appropriation and embezzlement of huge amount by using old payment vouchers. The inquiry was conducted and he was found guilty of charge. He was dismissed from service vide order dated 06.01.2012 which was served upon him on 09.01.2012 in the morning but he suppressed these facts during filing of the petition. Mere wild and bald allegation of unfair labour practice is not sufficient to prove victimization of the petitioner, hence the application is rejected." The petitioner subsequently withdrew his petition under Section 31 of IRA, 2012 and came up with the instant grievance petition under Section 33 of IRA, 2012.
7.  A careful perusal of the contents of the grievance petition goes to show that neither service of any grievance notice has been mentioned therein nor copy of any such notice has been placed on record, which fact too has not been denied by the learned counsel for the petitioner during his arguments. Main thrust of the learned counsel for the petitioner was that since the petitioner had earlier been alleging commission of unfair labour practice by the respondent management in connection with his service and labour activities which ended in his dismissal as such the previous petition complaining unfair labour practice on the part of the employer would tantamount to grievance notice. I am sorry. I cannot agree with the learned counsel for the petitioner for the reason that it is basic principle that if a mandatory condition for exercise of jurisdiction by a Court is not fulfilled then the entire proceedings which follow become illegal and suffer for want of jurisdiction as laid down in PLD 1971 SC 124 and 2006 SCMR 783. Plea raised by the petitioner that he had previously filed a petition complaining Commission of unfair labour practice on the part of the respondent management which could be turned as grievance notice cannot in any manner be equated with grievance notice. Law required a grievance notice to be served on the employer/respondent which had not been served. Petitioner initiated incompetent proceedings against the respondents as no grievance notice under Section 33 of IRA, 2012 had been given as such this grievance petition is not maintainable in the eyes of law. I am forfeited in this view by the dictum laid down in 2006 PLC 617 Lahore High Court and 2002 SCMR 943. Further it is settled law that the period for redressal of grievance under Section 33 of IRA 2012 begins once the cause of action had accrued. In the instant case the order of dismissal of the petitioner from service was made on 06.01.2012. The cause of action had thus accrued on 06.01.2012. Though as has been pointed above no grievance notice as required by law has been served on the employer by the petitioner and on this sole ground the petition is not maintainable, yet for the sake of arguments for a while if it is to be taken into account the earlier petition moved on 09.01.2012 alleging unfair labour practice on the part of the respondent management, as grievance notice, even then this grievance petition is time barred by 18 days having not been filed within the stipulated period of limitation prescribed. No application for condonation of delay has even been filed till date nor each day's delay has been explained which rendered the petition as incompetent.
7.  Thus for the forgoing reasons, this grievance petition merits dismissal which is accordingly dismissed.
(R.A.)  Petition dismissed

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