BASHIR AHMED MEMON (MEMBER).--- This is petition under section 49(4)(e) of the I.R.O., 2002 along with application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 filed by the petitioner against the respondents.
2. Facts of the case as stated in the petition are that the petitioner is permanent workman employed in the respondents Bank. He was initially appointed as Cashier on 18-5-1973 and at present he is working as Assistant. He is workman within the meaning of section 2(xxx) of the I.R.O., 2002 as well as Standing Order 2(i) of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The petitioner has spotless long outstanding carrier and was appreciated from time to time. Copies of meritorial certificate during the years, 2001, 2003, 2004, 2005 and 2006 have been filed with petition as Annexures "A/1" to "A/6". It is submitted that petitioner was elected as Social Welfare Secretary of United Bank Labour Union in the year, 1996 vide letter dated 8-12-1996 issued by Joint Director Labour Sindh Central Division, Karachi filed as Annexure "A/7". It is submitted that petitioner played very active role to promote his trade union namely UBL Labour Union, which was C.B.A. At the relevant time and was leaded by Abdul Aziz Memon. The respondents management was deadly against this union and as pressure and coercion most of the office-bearers were victimized/sacked on one pretext or the other. Prior to this the petitioner was previously pressurized to desist from his trade union activities otherwise to face dire consequences viz. Transfer, termination or any other punishment adverse to his employment but he refused to do so, as such the petitioner was transferred vide letter 3-5-2000. He filed a petition before this Bench of Commission in which this Bench passed the interim order, whereby the transfer order dated 3-5-2000 was suspended by this Bench of Commission vide order dated 16-5-2000, which was later on confirmed vide order passed by this. Bench on 18-7-2000, which was challenged by the respondents' Bank in appeal bearing Appeal No,12(64)/2000 before the Full Bench of Commission. The said appeal was allowed by the Full Bench and the order passed by this Bench was set aside. It is submitted that UBL Labour Union has been crushed and at present there is no body to lead this union and the respondents' management has been succeeded to divide the strength of workers by getting two Collective Bargaining Agents one for Sindh and Balochistan and other for Punjab and N.-W.F.P. And UBL Workmen Union was declared Collective Bargaining Agent (C.B.A.) for Sindh and Balochistan. It is submitted that since the petitioner was strong supporter of UBL Labour Union, as such respondents Nos.2, 3 and 4 continuously were harassing and pressurizing him to join sitting C.B.A and due to fear and threat of adverse action, the petitioner joined the sitting C.B.A. It is submitted that although after joining the sitting C.B.A. The petitioner gave assurance to the respondents' management that he will not participate in any trade union activities and perform his duties smoothly, yet respondents Nos.2, 3 and 4 in the month of October, 2008 asked the petitioner to accept any position in the sitting C.B.A. UBL Workmen Union or to face dire consequences but the petitioner refused the offer of the respondents. It is submitted that on 6- 11-2008 Mrs. Humera Shahid and Mr. Naz-e-Rasool respondents Nos.3 and 4 called the petitioner in her chamber at about 3-00 p.m. And asked the petitioner to accept VSS and when the petitioner refused, both the respondents threatened him of dire consequences and due to that mental torture the petitioner was upset and sent leave application for 7-11-2008 filed as Annex.A/9 with the petition. It is submitted that instead to mark leave for 7-11-2008, the respondents marked the petitioner as "surplus" and "absent" on 7th and 8th of November, 2008. It is submitted that as practice there was combined attendance register of all the staff but from 1-11-2008 the said practice has been changed and separate attendance register has been maintained entering the names of respondents Nos.3 and 4 along with petitioner and the petitioner was informed by respondent No.4 Naz-e Rasool that on 8-11-2008 respondent Nos.2 Mr. Ahmed Mustafa had visited the office and had asked him to sack the petitioner as the petitioner was not accepting their directions of joining the trade union, as such he was marked "Surplus", "Absent" and "Ghost employees" in the attendance register. Copy of the attendance register is filed as Annexure "A/11" with petition. It is therefore, prayed that this Commission may hold, direct and pass orders that the above acts of respondents are acts of unfair labour practice and to direct the respondents to remove the word "Surplus" and "Ghost employee" from the Attendance Register and to restrain the respondents not to dismiss, discharge, terminate, transfer or remove the petitioner from the employment till disposal of the main petition and not to insist the petitioner for taking part in the particular trade union.
3. On presentation of the petition ad interim prohibitory order was passed on 15-11-2008, whereby the respondents were restrained from taking any action regarding dismissal, discharge, termination or transfer of the petitioner till the next date, which continues from date to date.
4. The respondents filed comments with preliminary legal objections on main petition and counter affidavit on stay application. The legal objections raised are regarding maintainability of the petition on the ground that proviso of section 49(4)(e) of I.R.O.,2002 provides bar on the Commission for granting interim relief against any action mentioned in section 63(d) of I.R.O., 2002 in the absence of pendency of Industrial dispute as no Industrial Dispute is pending between the C.B.A. And the respondents management. Second legal objection of the respondents regarding maintainability of the petition is that the petitioner claims to be the member of United Bank Labour Union, registration of which has been cancelled by the NIRC as such the question of commission-of unfair labour practice due to his trade union activities being member of the said union does not arise, as such the petition is not maintainable and is liable to be dismissed. On merits it is stated by the respondents that no cause of action has accrued to the petitioner as no show-cause notice or charge sheet has been issued to him, due to which he apprehends his removal from service. It is vehemently denied by the respondents that the petitioner was forced to accept some position in UBL workmen Union. It is stated that the respondents' management do not interfere in the internal trade union activities of the workers, therefore the question of extending threats by the respondents does not arise. It is also denied that respondents' management succeeded to divide the workers by creating two CBUs in the establishment because determination of C.B.A. Was ordered by the learned Chairman/RITU, NIRC vide his order, dated 6-4-2006, which was passed on a reference made by the Federal Government, as such the claim of the petitioner is false that the respondents' management has divided the workers through two CBUs. It is stated that the petitioner was declared surplus by the Area Office/Branch, who has right to do so and the petitioner is liable to be absorbed elsewhere due to exigency of work. Eskri otherwise the said allegation of the petitioner does not fall within the ambit of unfair labour practice. No unfair labour practice as alleged has been committed by the respondents nor do they intend to commit in future also. It is also denied by the respondents that there is any apprehension that the respondents shall start transferring, charge sheeting or victimizing any person by way of unfair labour practice, as such the general and bald allegations cannot be termed as unfair labour practice. It is reiterated that transfer, demotion, suspension, termination or dismissal are all legal and contracted rights of the employer and cannot be curbed in general under the garb of a general and bald petition by alleging unfair labour practice. It is prayed that petition may be dismissed along with stay application.
5. Petitioner has filed affidavit-in-rejoinder.
6. I have heard arguments of Mr. M. Rafiq Malik, learned counsel for the petitioner and Mr. Faisal Mahmood Ghani, learned counsel for the respondents and have gone through the record and pleadings of the case.
7. Mr. M. Rafiq Malik,' learned counsel for the petitioner has reiterated the facts stated in the petition and has contended that petitioner is permanent employee of the respondents Bank and has a spotless career and has been awarded appreciation letters for his good performance. Learned counsel during his arguments has submitted the very same facts, which he has mentioned in this petition, and has further argued that, though the petitioner has sent an application for two days casual leave, but in spite of that he has been marked as "absent, No work and Ghost employee", which indicates that the management is having malice against the petitioner and higher officials can take adverse action against the petitioner, and all it comes under the scope of unfair labour practice, and it is why the petitioner has approached this Bench of Commission for safeguard. It is argued that section 46 of the I.R.O., 2002 provides that when the matter is pending before the Commission it is deemed to be an industrial dispute and the Commission has jurisdiction to pass an interim order, and the petitioner has made out a good prima facie case. In support of his contention the learned counsel for the petitioner has placed his reliance on PLD 1988 SC 53, 1987 PLC 675, PLD 1986 Lah. 90, 1986 PLC 105, PLJ 1975 Karachi 407 and 2001 PLC 543. Further it was contended by the learned counsel for the petitioner that the petitioner was being discriminated though he was a senior and old employee as many junior employees were available but he was declared surplus and ghost employees and by this the respondents have committed an act of unfair labour practice. It is contended that if the case of the petitioner does not fall within purview of sub-clause (d) the case has been made out under clauses (a)(b) and (c) of the I.R.O., 2002, as such this Commission has jurisdiction to grant relief as prayed.
8. Mr. Faisal Mahmood Ghani, learned counsel appearing for the respondents argued that from the entire petition and prayer of the petitioner no case of unfair labour practice has been made out.
Prayer of the petitioner is to restrai the respondents from effecting, dismissal, termination or transfer, which even is presumed to be correct the relief required could not be granted by this Commission because there is a bar under proviso of section 49(4)(e) of the I.R.O., 2002 that no interim relief can be granted for the actions mentioned in sub-clause (d) of section 49(4)(e) of the I.R.O., 2002 as no industrial dispute is pending. He has contended that admittedly a settlement was operative till 31-12-2008 and during the pendency of settlement no fresh settlement can be signed between the parties, as such the stay application in these circumstances is not maintainable and the same may be dismissed. In support of his contention the learned counsel for the respondents has placed his reliance on 2007 PLC 133.
9. In reply to the argument of learned counsel for the petitioner that filing of present petition is deemed to be an industrial dispute, the learned counsel for the respondents argued that industrial dispute has been defined under section 35 of the I.R.O., 2002, which speaks as to how the industrial dispute is raised, as such the case of the petitioner has no foundation. He further argued that it is right of the respondents' management to transfer, terminate or otherwise take any disciplinary action against its employee if he commits any misconduct, which is a contracted and legal right of the employer, which cannot be curtailed, but it seems that the present petition filed by the petitioner has been filed to curtail the statuary rights of the respondents management, as such the same is not maintainable and shall be dismissed. The learned counsel for the respondents however has submitted that the respondents have not committed any act of unfair labour practice nor they do intend to commit such an act in future. It is argued by the learned counsel for the respondents in reply to the arguments that CBAs were declared on the application of United Bank Limited, the said order was passed by the learned Chairman/RITU on the reference made to him by the Federal Government and respondents Bank has nothing to do with the same. It is argued that no charge sheet or show-cause notice has been issued to the petitioner and he was declared surplus in the sense that at the Airport Branch of UBL the petitioner was surplus because there was no work load and the petitioner's apprehension of commission of unfair labour practice is unfounded and by this the petition is not maintainable as the petitioner has no cause of action to file the present petition. It is argued that simple termination or dismissal from service is also not an act of unfair labour practice. It has been argued by the learned counsel that no specific instance of commission of unfair labour practice has not been disclosed by the petitioner, which according to him has annoyed the respondents to the extent that the respondents decided to get rid of him.
Mere bald anti general allegations are not unfair labour practice. In support of his contention the learned counsel for the respondents has relied upon PLD 1988 SC 53, 2001 PLC 712. The learned counsel for the respondents made statement at the bar that no unfair labour practice will be committed against the petitioner and retrenchment if any will be Made in accordance with law. No VSS is being offered to the petitioner. The leaned counsel for the respondents has argued that the case-law cited by the learned counsel for the petitioner is distinguishable with the facts of the present case and it relates to the cases prior to the promulgation of new I.R.O., 2002. In support of his contentions the learned counsel for the respondents has placed his reliance on 1993 PLC 103, 2002 PLC 87, unreported decision of Honourable High Court of Sindh at Karachi in C.P,No,D-235 of 2005 of Messrs Allwin Engineering Industries Ltd. v. National Industrial Relations Commission, Full Bench and another.
10. I have considered the arguments of both the learned counsel and I have also perused the petition, comments, counter affidavit filed on stay application and rejoinder etc. Filed by the petitioner.
11. From the facts as disclosed in the petition, there appears no instance of an unfair labour practice as claimed by the petitioner. The case of the petitioner is that since he was absent from duty and respondent No,2 visited his office and on the attendance register he marked the petitioner as "Ghost" employee. The petitioner has also failed to produce any document to show that he is an active supporter of the union, Except the statement in the petition no document has been produced by the petitioner as to what union activities he performed due to which the management was annoyed with him.
12. It will be worth to mention here that the petitioner has filed the present petition before this Bench of Commission on 15-11-2008 and then the matter was adjourned to 28-11-2008 and comments were called and then the matter was adjourned to 1-12-2008 and again to 6-12-2008. On all these four dates of hearing the petitioner has remained present in the Court up to 11-30 a.m. Or 12-00 noon I had developed some doubt in my mind as such I had called for attendance register from the respondents which has been produced and on perusal of the same it appears that on all the above four dates viz. 15-11-2008, 28-11-2008, 1-12-2008 and 6-12-2008, the petitioner has signed the attendance register claiming to be present in the office. The attendance register further indicates the remarks on the said register from 14-11-2008 to 29-11-2008, where it has been marked by superior officer of the petitioner disclosing the actual time of the arrival of the petitioner in the office according to which the petitioner has not reached the office earlier to 11-00 a.m., which supports the contention of the respondents that the petitioner was "Ghost employee".
13. In order to reconcile the matter between the petitioner and the respondents I had called for one of the responsible officers amongst the respondents and respondent No,2 namely Ahmed Mustafa, Regional Operational Head of respondent-Bank had appeared before me on 10-1-2009 and on my inquiry he disclosed that the management has no any intention to remove the petitioner from service. However it is right of the management to transfer any of his subordinate/worker to some suitable place, where his services could be utilized in the interest of Bank. He further disclosed that at Airport Branch there is a very small business, as such the management wanted to shift the petitioner to some other suitable place. On this I direct Ahmed Mustafa, respondent No,2 to provide a proposal of three branches where the petitioner could be accommodated. Accordingly on 14-1- 2009 on direction of this Bench of Commission the respondent has submitted a list of 3 branches viz. (1) Khayaban-e-Shamsher Branch, UBL Clifton District Karachi, (2) Bahaddurabad Branch, UBL PECHS District Karachi and (3) Mehmoodabad Branch, UBL Shaheed-e-Millat Road, District Karachi.
The petitioner was willing to accept the offer of the respondents but his learned counsel raised objection that the manner and language used in the statement dated 14-1-2009 are not acceptable to the petitioner as such he refused the offer of the respondents.
14. It would be appropriate to reproduce the statement submitted by the respondents on 14-1-2009, which reads as follows:-- "For and on behalf of United Bank Limited, as queried by the Honourable Commission to Ahmed Mustafa Regional Operations Head-Karachi without prejudice to the legal rights and the locus standi of the petitioner to file the present petition in view of the respondent's legal objections and reply statement, we advise one of the following branches of Karachi where petitioner Muhammad Iqbal Jinia presently posted at UBL Airport District Office can be transferred against vacant position: (1). Khayaban-e-Shahmsheer Branch, UBL Clifton District Karachi.
(2). Bahadurabad Branch, UBL PECHS District Karachi (3). Mehmoodabad Branch, UBL Shaheed-e-Millat Road, District Karachi".
From the very clear perusal of above statement there appears no any reason or justification to reject the offer &furnished by the respondents regarding the transfer of the petitioner from Airport Branch to any of above three branches. In any case it is right and prerogative of the employer to transfer any of its employees from one place to another place if such transfer is not tainted with any act of unfair labour practice. In the present case there is no material produced by the petitioner to show that the petitioner is being victimized by the respondents due to his trade union activities. Admittedly the petitioner is not an office bearer of any trade union at present. According to him he has joined UBL Workmen Union but no documentary proof has been produced regarding his affiliation with the said union. No specific instance of unfair labour practice has been mentioned in the petition. No balance of convenience lies in favour of the petitioner and the petitioner will not suffer any irreparable loss or injury if the interim stay is not granted.
15.Even otherwise proviso of clause (e) of subsection (4) of section 49 of the I.R.O., 2002 bars the grant of interim relief when there is no industrial dispute pending. Accordingly the application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 filed by the petitioner is dismissed. To come up on 11-2-2009 for filing affidavit in evidence by the petitioner.