AMIR ALI Versus GHULAM FARID, SUPERINTENDING ENGINEER, ELECTRICITY WAPDA, LAHORE

1. M. S. H. QURAISHI (CHAIRMAN): ‑--This appeal came up for hearing under subsection (4) of section 22‑B of I.R.O., 1969, in the absence of Mr. Ashraf Ali, Joint Secretary, Labour Division, who is pre‑occupied.

2. The appellant is aggrieved by the order, dated 23‑11‑1987 passed by a Single Bench of this Commission whereby his petition filed under section 22‑A(8)(g) of the I.R.O. was dismissed.

3. The appellant is Lineman‑II Electricity in the WAPDA. He was placed under suspension on 23‑2‑1987 and was issued a show‑cause notice on 7‑4‑1987. The show‑cause notice contained the following allegation:

4. "That you were promoted as L/M‑1I vide Superintending Engineer 4th, Lahore Office Order No. 188, dated 21‑2‑1987 and your services placed at the disposal of XEN Kasur Division Wapda, Kasur. Instead of availing your promotion you approached the worthy Chairman A.E.B., Lahore on 23‑2‑1987,‑through a close friend of him for cancellation of your transfer orders. As such you have been held guilty of misconduct:"

5. He challenged the action as constituting unfair labour practice and sought from the Commission a direction to the WAPDA "not to commit any further unfair labour practice against the petitioner ..".

6. In their comments, the WAPDA challenged the jurisdiction of the Commission urging that the appellant being deemed a civil servant, his remedy was before the Federal Service Tribunal. They also alleged that the appellant had suppressed facts, and prayed that the petition be dismissed.

7. The learned Single Bench held that he had no jurisdiction to hear the petition in view of section 17(1‑B) of the WAPDA Act. He further held that the appellant had "miserably failed to establish a case of unfair labour practice on the part of the respondents and his petition is liable to dismissal". On this view of the matter, the petition was dismissed by the impugned order.

8. The question of maintainability of a petition from an employee of WAPDA alleging unfair labour practice had been examined by a Full Bench of this Commission in: Muhammad Ashiq v. Executive Engineer, WAPDA, Kasur 1985 P L C 488 and it had been held that:

9. "Although the workmen employed in Wapda were civil servants for the purposes of the Service Tribunals Act, 1973, the offence of unfair labour practice is cognizable and triable exclusively by the Commission under section 22‑A with the exception that such jurisdiction stands taken away in a case of removal or termination of service."

10. It follows that if the appellant be a worker in WAPDA, he could invoke the jurisdiction of the Commission upon, allegation of unfair labour practice unless his was a case of removal or termination from service. Since his was not a case of removal or termination from service, his petition, in the light of the aforesaid ruling of the Full Bench, was maintainable and to that extent the finding given by the learned Single Bench against exercise of jurisdiction, stands modified. The petition filed under section 22‑A(8)(g) of the I.R.O. 1969, bearing allegation of unfair labour practice was within jurisdiction of this Commission.

11. The question, however, remains whether the petition filed under section 22‑A(8)(g) disclosed proper cause of action. The basic matter against which the appellant had come to the Commission is, his suspension and the departmental proceeding initiated by service of show‑cause notice upon him. Now, whether the charge levelled against him by the Department is correct or not, is a matter to be enquired into and decided under the relevant law by the Department itself. And in case the charge is established against the appellant and action, thereupon, is taken against him by the Department, he can hardly challenge the same as constituting unfair labour practice notwithstanding his assertions in that regard. The duty of the Commission in such matters has been fully explained by a Full Bench of this Commission in National Motors v. Muhammad Hanif 1987 P L C 547 in which it was observed:

12. "It is necessary to state clearly the duties and functions of this Commission in matters arising out of disciplinary actions against workers. In such matters the Commission does not sit in judgment over the action as an Appellate Forum. The Commission is not concerned with the deficiency if any, of law or fact in the action and will not set aside the Management's decision merely upon a finding of error in the procedure adopted or of want of sufficiency of evidence upon which the action proceeds. Nor will the Commission interfere only because the action requires correction. That may be the function of the forum acting under section 25‑A of the I.R.O., 1969. The Commission's jurisdiction is and as has rightly been invoked in this case, under clause (g) of subsection (8) of section 22‑A of the I.R.O., 1969, upon allegation of unfair labour practice. In proceeding under this clause, the Commission has to examine, if the Management was motivated by any of the considerations enumerated in section 15(1). For this purpose, the Commission may also scrutinise, if the Management's was based upon no evidence or upon misreading of evidence or was perverse to the evidence or was in colourable exercise of power. For, that, if established will detract from the bona fides of the Management and may lend credibility to the allegation of unfair act unless one or more of the ingredients of section 15, which sets out what constitutes unfair labour practice on the part of employer, stands proved independently by factual or circumstantial evidence. The examination of the Management's action is, therefore, only collateral, and a mere finding against the correctness of the action will not per se establish unfair labour practice within the meaning of section 15."

13. Even, otherwise, in departmental disciplinary proceedings it is not open to this forum to reopen and repeat the enquiry or to substitute itself for the Enquiry Officer. The Supreme Court in Sui Gas Transmission Co. Ltd. v. The Islamic Republic of Pakistan and 2 others P L D 1959 S C‑ (Pak.) 66 held that: "that it was not the province of the Tribunal to go into the merits of the allegations but that its jurisdiction was only to see if there was a fair enquiry and the employee was given an opportunity to explain the charge was pointed out by this Court in Dalmia Cement` Factory case referred to above.". Similarly, in Pakistan Petroleum Workers Federation Karachi v. Burmah Shell Oil Storage and Distributing Company and others P L D 1961 S C 479 (513), the principle followed by the Tribunal of not sitting in appeal over the proceeding in the enquiry was approved.

14. The action simpliciter of the employer of suspending the appellant or initiating disciplinary proceeding against him on the given charge, can not on the present showing be termed to be unfair labour practice. The petition of the appellant does not disclose a proper cause of action. That being so the view taken by the learned Single Bench that the appellant has miserably failed to establish a case of unfair labour practice on the part of the respondent, does not warrant any interference.

15. The appeal fails and is accordingly dismissed in limine.

16. S.Q./123/NIRC Appeal dismissed.