' GHULAM NAUMAN SHAIKH (MEMBER).--- This is petition under section 49(4)(e) of the I.R.O., 2002 read with. N.I.R.C. (P&F) Regulations, 1973 along with 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.
2. Facts of the case as stated in the petition are that the petitioner is employed in the respondents establishment as Cargo Assistant from 21-5-1993. He is an active supporter and affiliated with a trade union by the name United Labour Front of Shaheen Airport Service, which could not be registered yet as the respondents had opposed its registration and the matter is now pending in the Honourable High Court of Lahore, Rawalpindi Bench. It is submitted that there are other trade unions registered in the respondents establishment, but none of the union could be able to perform the functions of Collective Bargaining Agent due to mala fide attitude of the respondents. It is submitted that the petitioner became sick and applied for leave, but instead to grant leave the respondents issued show-cause notice to the petitioner and initiated enquiry proceedings. It is alleged that the petitioner was pressurized to resign otherwise was threatened to be dismissed under the garb of disciplinary proceedings. It is submitted that during the enquiry proceedings the petitioner has been issued letter, dated 10-3-2006, thereby transferring him from Karachi to Lahore.
This act of the respondents is alleged to be an act of victimization and unfair labour practice. It is prayed that this Commission may be pleased to allow the petition and to declare the acts of the respondents as acts of unfair labour practice and to restrain the respondents and their connected persons from terminating removing, suspending, transferring, demoting or taking any adverse action against the petitioner.
3. On presentation of the petition pre-admission notice was issued to the respondents.
4. On 24-3-2006 Mr. S.M. Iqbal, Advocate appeared for the respondents and requested for date for filing comments on main petition and counter-affidavit on stay application. Mr. M.A.K. Azmati, Advocate for the petitioner submitted that meanwhile interim order be passed so that the respondents may not take any adverse action against the petitioner for his non-joining of duty at Lahore as directed under transfer order, dated 10-3-2006, whereupon Mr. S.M. Iqbal, Advocate for the respondents submitted that the petitioner was even not attending his duty at Karachi, as such he has remained absent from his duty. He submitted that at least the petitioner may attend his duty at Karachi in view of these submissions it was directed that petitioner meanwhile to attend his duty at Karachi instead at Lahore as directed under the transfer order till the next date. The said interim order continues till this date.
5. The respondents filed comments with preliminary legal objections on main petition and counter- affidavit on stay application. The legal objections raised are that the Shaheen Airport Service is a project and Unit of Shaheen Foundation of the Pakistan Air Force, which is a Charitable Trust, as such the same being not an industry or industrial or commercial establishment, the Industrial Relations Ordinance does not apply to the respondents establishment. It is submitted that no union activities or any union exist in the respondents establishment. This is a simple case of transfer and is not an act of unfair labour practice. On facts it is denied that there is any union by the name of United Labour Front of Shaheen Airport Services. It is denied that the petitioner has any affiliation with trade union. It is submitted that the petitioner had been issued show-cause cause notice regarding his misconduct in the past and disciplinary proceedings were taken against the petitioner, but lenient view was taken and his annual increment was stopped for a period of one year vide letter, dated 27-11-2004. This will show that the management of the respondents was not against the petitioner. It is submitted that show-cause notice, dated 18-1-2006, which is filed as Annexure P.2 with the petition, was issued to the petitioner for habitual unauthorized absence of the petitioner during the months of October, November and December, 2005 and enquiry proceedings are pending before the Enquiry Officer. It is submitted that show-cause notice dated 18-1-2006 and holding of enquiry thereupon has no connection with the transfer of the petitioner from Karachi to Lahore, which has been done in exigency of work as Shaheen Airport Service is in the process of expansion of new cargo complex at Lahore and such requirement was sent from Lahore to Karachi vide letter dated 8-3-2006 and is filed as Annexure "N" with the comments. It is submitted that no prohibitory order regarding transfer of the petitioner from Karachi to Lahore can be passed as there is no element of unfair labour practice on the part of the respondents.
6. I have heard Mr. S.M. Yaqoob, learned Advocate for the respondents and Mr. M.A.K. Azmati, learned Advocate for the petitioner on the legal objections regarding maintainability of the petition and non-applicability of the I.R.O., 2002 and have gone through the record.
7. Mr. S.M. Yaqoob, learned Advocate for the respondents has contended that no union by the name United Labour Front of Shaheen Airport Services exists in the respondents establishment. It is submitted that issuing of show-cause notice and conducting enquiry is a process of disciplinary proceedings and the same is not an act of unfair labour practice. It is submitted that letter, dated 8-3-2006 was received from Lahore requesting to send some staff to work at Lahore. Accordingly the petitioner was transferred from Karachi to Lahore vide letter, dated 10-3-2006 filed as Annexure P.4 with the petition. Transfer of the petitioner is term and condition of his employment, which is filed as Annexure "0" with the comments. It is submitted that previously also the cases were filed against the respondents establishment before National Industrial Relations Commission and it was held by the Full Bench in Appeal No,12(22)/2003 (Shaheen Airport Services Hard Workers Union v.
The Registrar Industrywise Trade Unions and another) vide order, dated 23-10-2003 that provisions of I.R.O., 2002 are not applicable to the respondents establishment, which order is filed as Annexure "F" with the reply. It is submitted that another employee of the respondents, namely, Naveed Iqbal had filed a petition under section 22-A(8)(g) of the I.R.O., 1969 before this Bench of Commission bearing Case No,4A(219)/2002-K wherein also this bench of Commission vide order dated 3-5- 2005 has held that the provisions of I.R.O. Do not apply to the respondents establishment, which order has been filed as Annexure "G" with the comments. It is submitted that another case was filed by Alam Mirza under section 49(4)(e) of the I.R.O., 2002 bearing Case No,4A(124)/2005-K which was dismissed in limine by order, dated 6-12-2005 by this Bench of Commission holding that the provisions of I.R.O., 2002 do not apply to the respondents establishment, copy whereof is filed as Annexure "H" with the comments.
8. Mr. M.A.K. Azmati, learned Advocate for the petitioner has submitted that the order, dated 6-12- 2005 passed in petition of Alam Mirza v. Shaheen Airport Service bearing No,4A(124)/2005-K by this Bench. Of. 'Commission' has been challenged in Appeal. .No,12(41)/2005-K and the matter is sub judice before the'Full Bench. He has submitted that the petitioner is being victimized by the respondents and since he is active supporter of trade union namely, "United Workers Front of Shaheen Airport Services". Wrongly typed as "United Labour Front of Shaheen Airport Service", he has been transferred to Lahore, which is an act of unfair labour practice. He has submitted that yet no decision has been given by the Labour Court comprising of two members of the Commission on the complaint filed for cancellation of the union in the establishment of Shaheen Airport Services, as such the Commission has jurisdiction to deal with the case of unfair labour practice.
9. I have given my anxious consideration to the arguments advanced by the learned Advocates for the parties and have gone through the record and proceedings.
10. In the petition it is not mentioned that the petitioner is either office-bearer or member of trade union, but only it is submitted that the petitioner is affiliated and active supporter of United Labour Front of Shaheen Airport Services. During arguments advanced by Mr. M.A.K. Azmati, learned Advocate for the petitioner it is submitted that the name of trade union is wrongly typed in the petition and it shall be read as "United Workers Front of Shaheen Airport Services". No any specific B instance of victimization prior to present transfer order has been mentioned in the petition, so as to constitute any act of unfair labour practice on the part of respondents. It is own statement of the petitioner that trade union, to which he claims to be affiliated and active supporter, is even not registered, as such it shall not be conceivable as to what activities the petitioner had been doing regarding the trade union, which caused annoyance to the respondents so as to victimize to the extent to issue his transfer order.
11. Moreover, issuing of interim relief covered under section 63 (1)(d) of the I.R.O., 2002 is subject to pendency of industrial dispute under proviso of clause (e) of subsection (4) of section 49 of the I.R.O., 2002 and admittedly no such industrial dispute is pending. In Appeal No,12(22)/2003 Full Bench of N.I.R.C. Vide its order, dated 23-10-2003 has held that provisions of I.R.O., 2002 do not apply to the respondents establishment. Following the Full Bench I have also observed in case of Naveed Iqbal v. Shaheen Airport Service bearing No,4A(219)/2002-K in order dated 3-5-2005 that provisions of I.R.O. Do not apply to the respondents establishment. Another petitioner filed by Alam Mirza under section 49(4)(e) of I.R.O., 2002 bearing No,4A(124)/2005-K, was also dismissed in limine by observing that the provisions of I.R.O. Do not apply to the respondents establishment.
' For the foregoing reasons I am of the considered view that the petitioner has not been able to make out a prima facie case for grant of prohibitory order and due to non-applicability of the provisions of I.R.O., 2002 to the respondents establishment, the petition is not maintainable.
Accordingly, the petition along with application under Regulation 32(2)(c) of N.I.R.C. (P&F)
Regulations, 1973 is dismissed and interim prohibitory order, passed on 24-3-2006 is hereby recalled.
' Announced in open Court.