' GHULAM NAUMAN SHAIKH (MEMBER).--- This is petition under section 49(4)(e) of I.R.O., 2002 along with an application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 supported by affidavit filed by the petitioner against the respondents.
1. The facts of the case as stated in the petitioner are that the petitioner is working as Lineman in the establishment of the respondent No,4. The petitioner is a workman. He is Divisional Secretary of Pakistan WAPDA Hydro Electric Central Labour Union, which is C.B.A. The petitioner is performing an active and constructive role, in participation of lawful trade union activities for redressal of grievances of the workers/members of C.B.A. Working in the establishment of respondent No,4. It is alleged that the respondent No,4 had called the petitioner on number of occasions and threatened and compelled the petitioner to desist from participation in trade union activities at the establishment of the respondent No,4 and leave the membership of C.B.A. Union. In case the petitioner will continue such activities, there were directions from the respondents Nos.2 and 3 that strict disciplinary action will be taken against the petitioner and he will be thrown out from the employment on account of his involvement in trade union activities at establishment of the respondent No,4. It is submitted that as a result of denial of the petitioner to obey illegal directives of the respondents, the petitioner has now received office order dated 24-2-2007 through post on 27-2-2007, whereby the respondent No,2 has directed the respondent No,4 for relieving the petitioner from the establishment of the respondent No,4 to the establishment of respondent No,1 i,e, from Shikarpur to Lahore for further posting against vacant post. It is alleged that transfer letter dated 24-2-2007 has been issued so that the petitioner may be deprived to perform lawful trade union activities in the capacity of Division Secretary of C.B.A. Union at the establishment of the respondent No,4, which act constitute unfair labour practice. It is prayed to prohibit the respondents from committing unfair labour practice and in the meantime restrain the respondents from taking adverse action in respect of petitioners' employment and relieving the petitioner from FIESCO Shikarpur-1, Shikarpur to LESCO-Lahore in pursuance of the transfer order, dated 24-2-2007 and in the meantime suspend the operation of office order dated 24-2-2007 and may be pleased to declare the same as acts of unfair labour practice.
2. On presentation of the petition on 1-3-2007 interim prohibitory order was passed, whereby operation of transfer order dated 24-2-2007 was suspended and the respondent No,4 was restrained to relieve the petitioner in pursuance to the transfer order dated 24-2-2007 and also not to take any adverse action in respect of the employment of the petitioner till the next date, which continues from date to date till to date.
3. The respondents filed parawise comments on main petition and counter-affidavit on application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973. The allegations levelled by the petitioner in the petition have been denied. It is submitted that the petitioner is not a recognized and notified office-bearer or shop steward either by or by Director Labour WAPDA Lahore. It is denied that the petitioner was threatened or compelled to desist from participation in trade union activities at the establishment of respondent No,4 and leave the membership of C.B.A. Union, otherwise the petitioner will be thrown out of the employment. It is denied that order of transfer of the petitioner from Shikarpur to Lahore dated 24-2-2007 has been issued so that the petitioner may be deprived to perform lawful trade union activities in the capacity of Division Secretary of C.B.A. Union at the establishment of the respondent No,4. It is submitted that the petitioner was transferred against some vacant post in the exigency of service.
4. The petitioner filed affidavit-in-rejoinder.
5. I have heard arguments of Mr. Abdul Ghaffar learned Advocate for the petitioner and Mr. Zafar Ahmed Khan learned Advocate for the respondent.
6. Mr. Abdul Ghaffar learned Advocate for the petitioner has contended that the petitioner is Divisional Secretary of Pakistan WAPDA, Hydro Electric Central Labour Union C.B.A. For XEN Operation Division HESCO Shikarpur (Divisional Body). The petitioner has played an active role in trade union activities. The respondents Nos.3 and 4 are not happy with trade union activities of the petitioner.
On 24-2-2007 letter of transfer of petitioner was issued, whereby the petitioner has been placed under the disposal of the respondent No,1, which is a separate independent entity. It is submitted that the petitioner has been transferred so that he may not be able to continue with his trade union activities and employment. It is submitted that the respondents now have taken the plea that disciplinary proceedings were conducted against the petitioner for his alleged involvement in commission of theft of electricity, whereby minor penalty has been awarded to the petitioner. It is submitted that the petitioner is being victimized due to his trade union activities. There is no mention in transfer order that the petitioner has been transferred as result of disciplinary proceedings held against the petitioner. Mr. Abdul Ghaffar learned Advocate for the petitioner has cited 1998 PLC 9 (Lahore High Court) and 1998 PLC (C.S.) 888 (Lahore High Court).
7. Mr. Zafar Ahmad Khan learned Advocate for the respondent has contended that the petitioner was involved in theft of electricity in respect of illegal connection to consumers for Air-Conditioners.
Disciplinary proceedings were conducted against the petitioner on the above said charge. After conclusion of enquiry the petitioner was awarded minor penalty, which has not been challenged by the petitioner and it has attained finality. The petitioner has suppressed this material fact in this petition. Due to this concealment of fact the petitioner is not entitled to grant of interim relief. It is submitted that the petitioner is also disqualified for being office-bearer of a trade union under section 7 of the I.R.O., 2002. It is submitted that there is no specific instance of victimization on account of trade union activities. The petitioner is neither an office-bearer nor a shop steward.
Claim of the petitioner that he is Division Secretary of Pakistan WAPDA Hydro Electric Central Labour Union (C.B.A.) is wrong and denied. It is contended that no industrial dispute is pending. Under proviso to clause (c) of subsection (4) of section 49 of the I.R.O., 2002 no interim relief against any action mentioned in section 63(d) of this Ordinance can be granted, when there is no industrial dispute pending. It is submitted that the petitioner has been involved in illegal activities and theft of electricity, thereby causing loss of huge amount to the respondent. Transfer of the petitioner is his terms and condition of service. The petitioner can be transferred to any place in Pakistan. It is submitted that the petitioner has been transferred due to his involvement in theft of electricity and also exigency of service and not as an act of victimization on account of his any trade union activities. It is contended that application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 as well as main petition may be dismissed. In support Mr. Zafar Ahmed Khan learned Advocate for the respondent has placed his reliance on 1994 PLC 476, 2001 PLC 86 and 2003 PLC 301.
8. I have considered arguments advanced by the learned Advocate for the parties and have gone through the petition, application under section 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973, supporting affidavit filed by the petitioner, parawise comments and counter-affidavit filed by the respondents and affidavit-in-rejoinder filed by the petitioner and documents produced by the parties.
9. The petitioner claims to be elected Divisional Secretary of Pakistan WAPDA Hydro Electric Central Labour Union (C.B.A.) in respect of Operation Division HESCO Shikarpur (Divisional Body) on the basis of election notification year 2004-2006 dated 28-2-2004 for the period of three years filed as Annexure "P-1" with the petition. This has been challenged by the respondents in their parawise comments. Despite this challenge of the respondents, the petitioner did not file original of this document. Through T.C.S. Copy of letter addressed to the Director (Adnm.) HESCO Hyderabad by Deputy Manager Operation Division HESCO Shikarpur dated 1-6-2007 was received and is placed on the file. It encloses Election Notification 2006-2008 of Pakistan WAPDA Hydro Electric Central Labour Union (C.B.A.) in respect of Operation Division HESCO Shikarpur (Divisional Body) dated 6-6- 2006, wherein Agha Abdul Rehman A/ASSTT. Has been mentioned as Divisional Secretary with effect from 13-5-2006, as such the petitioner ceased to be an office-bearer of the Pakistan WAPDA Hydro Electric Central Labour Union (C.B.A.) on the date when the petitioner has been transferred from Shikarpur to Lahore by transfer order dated 24-2-2006 and date of filing of this petition on 1- 3-2007. The petitioner did not disclose this fact in the petition, as such it appears that the petitioner by misrepresentation and concealment of the fact, filed the petition, alleging acts of unfair labour practice on the part of the respondents so as to obtain interim order on 1-3-2007. Documents now placed on record by the respondents show that the petitioner was indulged in theft of electricity by way of illegal connections to some of the consumers for their Air-Conditioners. Disciplinary .Proceedings were conducted against the petitioner on the above said charge and as a result of enquiry the petitioner was awarded minor penalty of Censure by the Deputy Manager (E) Operation Division.
HESCO Shikarpur by an office order dated 31-3-2006. The petitioner has not challenged above said minor penalty awarded to him. This fact also has not been disclosed by the petitioner in his petition, which also amounts to concealment of the facts, disentitling the petitioner for grant of interim relief as well as proceeding with the main petition.
10. There is no industrial dispute pending under proviso to clause (c) of subsection (4) of section 49 of the I.R.O., 2002 interim relief against any action mentioned in section 63(1)(d) of this Ordinance therefore, cannot be granted.
11. There are general and bald allegations. No specific instance of unfair labour practice has been shown by the petitioner either in petition, affidavit filed in support of application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 or affidavit in rejoinder or documents so far filed or produced by the petitioner, so as to establish case of unfair labour practice on the part of respondents. The transfer of the petitioner does not appear to have been issued by the respondents as an act of victimization on account of trade union activities of the petitioner.
Transfer to any of the establishment of the respondents throughout Pakistan is terms and conditions of service of the petitioner. It is right of the respondents to transfer the petitioner in the best interest of administration and exigency of service, which cannot be termed as an act of unfair labour practice.
' For the aforesaid reasons I am of the view that the petitioner has no case of unfair labour practice and it shall be futile exercise to proceed further with the petition. Accordingly the application under Regulation 32(2)(3) of N.I.R.C. (PE&F) Regulations, 1973 as well as the main petition under section 49(4)(e) of the I.R.O., 2002 are dismissed and interim prohibitory order, dated 1-3-2007 is recalled.
' Announced in open Court.
' Given under my hand and the seal of the Court, this the 11th day of July, 2007.