' MUHAMMAD SHABBIR JAMAL (MEMBER).--- This petition was filed under section 49(4)(e) of the Industrial Relations Ordinance, 2002 on 2-10-2004 accompanied by application for grant of stay and affidavit duly attested by the Oath Commissioner. In this petition the transfer orders, dated 28- 9-2004 and 17-9-2004 in respect of the petitioners were challenged with the pray that the same be set aside as the same were alleged to be based on unfair labour practice with a view to stopping them from participation in the internal election of the union scheduled to be held on 13-10-2004 under the supervision of Registrar Trade Unions, Islamabad. A letter, dated 2-9-2004 from RTU, Islamabad has also been appended to the petition as Annexure "H" by drawing attention to the effect that ZTBL Staff may not be transferred, in the interest of justice and fair play, to places outside Islamabad so that the elections are finalized.
2. Facts as stated in the petition precisely are that the petitioners are permanent employees in the respondent-Bank and are members of ZTBL Staff Union registered with RTU Islamabad which is stated to be certified as CBA for Islamabad District. Annexure "A" is appended to the petition as a proof of petitioners' trade union activities, which in fact is the result sheet of earlier trade union elections which were, though lost, contested by the petitioners. It is stated that the respondent management vide office order, dated 17-9-2004 (Annexure "E") transferred petitioner No,1 to Chakwal and vide order, dated 28-9-2004 (Annexure "J") transferred petitioner No,2 to Talagang.
3. After hearing the petitioners' learned counsel on 4-10-2004 interim injunction was issued with a view to enabling the petitioners to conveniently participate in the said election to be held on 13-10- 2004.
4. The instant petition has been resisted by the reply statement filed by the respondent-Bank with the contention that the same is misconceived. It is contended that the transfer being part of terms and conditions of service can be ordered by the employer in the interest of the organization. It is stated that the petitioner No,1 who was transferred to Chakwal on 17-9-2004 reported for duty at Chakwal on 22-9-2004 where he drew his salary for the month of September, 2004 from Chakwal Branch on 25-9-2004. It was further stated that petitioner No,2 who was likewise transferred on 28- 9-2004 to Talagang had not yet reported for duty at his new place of posting and in view of the interim order of this Bench the joining time in respect of him was extended upto 13-10-2004. The case was subsequently argued on stay application on 23-12-2006. This Bench was apprised that the petitioner No,1 could not exercise his right of vote as he had joined the new place of posting before the issuance of interim injunction, dated 4-10-2004 whereas the petitioner No,2 exercised his right of vote, because the joining time was extended till the date of polling. Thereafter he also joined his new place of posting. In this view of the situation, the interim injunction was recalled as the same had become infructuous and also the continuation thereof was not pressed by the learned Counsel for the petitioners. The parties were directed to file affidavits in evidence in the main petition. During the course of proceeding on the same day the learned Counsel for petitioners, however, filed an application on behalf of the petitioner No,1 with the request that an order be passed not to dislodge the petitioner from the house allotted to him. A copy of the said application was also provided to the learned counsel for respondent for reply on the next date of hearing.
5. During proceeding on 17-1-2006, the reply to the said application for retention of the residential accommodation was submitted by the learned counsel for respondent along with a copy of the policy titled as "Facilities to the Employees on Transfer". As the said policy is flexible, the employees in hardship cases can be accommodated. The respondent management was, therefore, directed to look into the request of the petitioner No,1 for retaining the residential accommodation allotted to him. The Director (Law) ZTBL who appeared before this Bench on that date committed to take up this matter with the competent authority and inform this Bench of the outcome in that regard by the next date of hearing. It is observed that the respondent management despite number of Court notices did not care to inform this Bench of any progress in the matter.
6. The learned counsel for the petitioners who appeared before this Bench on 12-7-2006 appraised that the petitioner No,1 was transferred from Islamabad to Chakwal and then from Chakwal to Rawalpindi and has now been transferred from Rawalpindi back to Islamabad. In this regard he has submitted the relevant office orders, dated 18-4-2006 and 20-5-2006 respectively relating to these postings. It was contended that the petitioner No,1 had been served with a charge sheet on 28-6-2006 ordering an inquiry against him in terms of the Removal from Service (Special Powers)
Ordinance, 2000 on the charge of retaining house at Islamabad after his transfer to Chakwal Branch. A copy of the charge sheet and the copy of the statement of allegations has also been presented to this Bench by his learned counsel which is placed in the case file. The impugned charge sheet provides that the charges, if proved, against the petitioner No,1 may call for imposition of major penalty in the shape of his dismissal from Bank's service. The learned counsel for the petitioners has also moved in this regard an application under section 151 of C.P.C. With the pray that order may be passed to quash the said charge sheet having been based on mala fides and unfair labour practice. It was contended that the charge sheet was in continuation of sequence of the acts of unfair labour practice taken by the management against the petitioner No,
1. It was argued that sufficient documentary proof to establish the respondent bank intends to harm his employment for his involvement in trade union activities had thus been provided. It was contended that the impugned charge sheet as such was liable to be quashed/set aside. It was reiterated that the same for obvious reasons was based on mala tides. It was contended that the case of the petitioner No,1 as such was attracted by section 49(4)(e) read with section 63 of I.R.O., 2002 and NIRC (Procedure and Functions) Regulations, 1973.
7. The contentions of the learned counsel for petitioners and also the said application moved by him on behalf of the petitioner No,1 have been strongly resisted by the learned counsel for the respondents. It was argued by him that this application was liable to dismissal because it entails fresh cause of action for which he should have filed fresh petition. It was also argued by him that service of charge sheet was not an unfair labour practice. It was contended that the instant petition had become infructuous the moment the petitioner No,1 joined Chakwal Branch after his transfer from Islamabad, it was also contended by him that the petitioner No,1 on transfer to Chakwal had lost his membership of ZTBL Staff Union which was locally registered with RTU Islamabad. It too was contended that the matter of retaining residential accommodation by the petitioner No,1 was not attracted by the aforesaid policy.
8. Although no affidavit in evidence was filed by any party after the stay was recalled, I also do not feel it necessary that any witnesses are produced in this case. The documents placed before this Bench are sufficient to determine the instant petition. In exercise of power vested in N.I.R.C. Under Regulation 34 of N.I.R.C. (Procedure and Functions) Regulations 1973, I dispense with any examination or cross-examination or re-examination to cut short the procedure. After hearing both the learned counsel, I hold that trade unionism is fundamental right vested in employees under the Constitution of Islamic Republic of Pakistan, 1973 and is regulated by the Industrial Relation Ordinance, 2002, which is a piece of legislation meant to control the accesses committed or to be committed by workers as well as the employers within the meaning of sections 63 and 64 respectively of the said Ordinance in order to strike a balance between the parties. I also hold that holding of election or referendum, raising industrial dispute etc. All are trade union activities and call for patience on the part of both sides of industry and recognition of trade unionism is necessitated as an integral, inevitable and democratic part of the industrial system. Obviously, during elections workers must be fully accommodated with a view to enabling them to cast their votes and choose independently their representatives in full freedom. Their dislocation from the place of voting will therefore be rightly termed as an uncalled for interference in their democratic right of trade unionism and so will be an unfair labour practice. Although the petitioner No,1 had on transfer joined Chakwal Branch and in technical terms the stay granted with a view to enabling him to participate in the election did not remain operative, the act of the management shows a bent of mind on its part as a result of which the petitioner No,1 was incapacitated from participation in the election in question. The respondent therefore, cannot be observed the charge of interference in trade union activities regardless of the tact as to whether the petitioner No, I on transfer to Chakwal retains or loses his membership of ZTBL Staff union which is locally registered.
9. So far as the retention of residential accommodation allotted to the petitioner No,1 is concerned, it is a matter exclusively of social dimension and is rightly attracted by Article 38 of the Constitution of Islamic Republic of Pakistan which aims to secure and promote well being of, the people including provision of social security benefits and basic necessities of life such as food, clothing, housing, education etc. It is therefore in no case advisable that on transfer an employee is compelled with harsh measures to vacate the house allotted to him by the organization as it would not only be a punishment to him but also to his family members because of disturbance. It is in the interest of justice and social protection of families that the education of children is not disturbed and the family is not dislodged without ensuring that the incumbent employee has arranged or has been provided proper residence at the new place of posting and his children, if any, are admitted to schools. The petitioner No,1 in this case was transferred from Islamabad to Chakwal and from Chakwal to Rawalpindi and from Rawalpindi back to Islamabad i,e, at a place where the accommodation allotted to him is still in the possession of his family. He on stations other than Islamabad does not seem to have been provided any residential accommodation on transfer to justify the vacation of previous one. Therefore to call for his explanation on the charge of retaining the accommodation in Islamabad b a harsh step and a direct threat to his employment on this charge under the Removal from Service (Special Power) Ordinance, 2000 which in no manner is a salutary approach. Obviously, the treatment with the petitioner No,1 falls within the ambit of section 63 concerning unfair labour practice on the part of the employer. Apprehension of the petitioner for injury to his employment for his involvement in trade unionism is thus genuine. Furthermore, the policy titled as "Facilities of E Employees on Transfer" which is placed in the case file is in the interest of families and is reasonably flexible. Equity and fair play demands that the competent authority should have invoked the same to accommodate the petitioner No,1 instead of taking coercive measures against him. Since the said petitioner has come back to Islamabad on transfer from other places, he should not be compelled to vacate the house allotted to him as the matter falls within the parameters laid down in the principles of policy contained in the Constitution of Islamic Republic of Pakistan, 1973 as well as the policy laid down by the respondent-Bank. Notwithstanding technicalities of the law as argued by the learned counsel for the respondent-Bank with regard to fresh cause of action, I hold that the application moved by the learned counsel for the petitioners under section 151 of the C.P.C. Is in continuation of the instant petition in .Sequence of acts of the respondent management. While the petitioner No,2 has been left with no grievance after he was allowed extension in the joining time on his transfer to Talagang to enable him to cast his vote in the said election held on 13-10-2004. The petitioner in respect of him has therefore, become infructuous and so stands disposed of. The respondent is however restrained from committing an act of unfair labour practice against the petitioner No,1 for his trade union activities within F the meaning of the law in force as he has genuine apprehension. The service of the impugned charge sheet on petitioner No,1 in the circumstances as such is based on mala fides. The instant petition in respect of the petitioner No,1 is, therefore, allowed accordingly.