' BASHIR AHMED MEMON (MEMBER).--- The petitioner has filed this petition under section 49(4)(e) of the I.R.O., 2002 stating therein that he is employed as permanent workman in the respondents factory situated at Landhi and is elected President of CBA Union. He has stated that respondents management has displayed notice on the Notice Board thereby declaring three days holidays on Eid-ul-Fitr viz. 3rd, 4th and 5th of November, 2005. Thereafter a subsequent notice was displayed on board, whereby workers were directed to report for duty on 3rd and 5th of November, 2005 and the respondents management threatened the workers of dismissal from employment if they did not attend their duty. It is alleged that the petitioner raised the issue with the management of respondents that on previous Eid-ul-Azha also the management asked the workers to report for duty but that was done with the agreement of CBA and they were also paid for the days, they were asked to work during Eid-ul-Azha holidays, but this time calling upon the workers to work on Eid-ul- Fitr holidays on 3rd, 4th and 5th of November, 2005 it was unilateral decision of the management and there was nothing in the notice that payment will be made to the workers for the work on 3rd, 4th and 5th of November, 2005. The management of the respondents became annoyed with the petitioner for raising this issue of the workers with the respondents and in this behalf General Secretary of the Union also has written letter to the management on 7th of November, 2005 which is produced as Annexure "A/1" with the petition on this very issue and also on 8-11-2005, which is produced as Annexure "A/2" with the petition. Thereafter a letter was written by the General Secretary to the Joint. Director Labour on 11-11-2005 which is produced as Annexure "A/3" with the petition which was responded by the Labour Department vide letter, dated 10-12-2005 which is produced as Annexure "A/4" with the petition. It is asserted that there are two groups of General Tyre and Rubber Workers Union, one is Aziz Khan Group which is headed by the petitioner and another Group which is headed by Niazi and the management is supporting Niazi Group. It is stated that the management being annoyed with the petitioner on account of his lawful trade Union activities, transferred him vide letter, dated 7-11-2005 (Annexure "A/8"). The petitioner submitted his grievance notice under section 46(1) of the I.R.O., 2002 to the respondents which is produced as Annexure "A/9" but the management started pressurizing the petitioner to resign from the post of President of the Union and under the pressure and force of the management the petitioner submitted his resignation from the post of President of the Union but the said resignation was not submitted in the General Body and the other office-bearers of the union were pressurized by the management to send the resignation of the petitioner from the post of President of the union to the Registrar of Trade Unions, Sindh Karachi for approval, otherwise they would be removed or terminated from service. It is asserted that under the pressure of the respondents management the resignation of the petitioner from the post of President was sent by the office-bearers of the union to the Labour Department. It is further stated that charter of demands was submitted by the CBA union on 1-1-2006 to the respondents management which after failure of bilateral negotiations was referred to Area Conciliator, who convened the conciliation meeting, but the respondents persuaded the conciliator that management of respondents and the office-bearers of the CBA will settle the charter of demands and sign the settlement as such the charter of demands was remanded to be discussed by the management and CBA office-bearers by themselves, which is not yet settled. It is asserted that since the petitioner being President of General Tyre and Rubber Workers Union was actively perusing the charter of demand, as such he was forced to resign under the threat, therefore the above said resignation from the post of the President was submitted by the petitioner. It is submitted that the respondents have also issued transfer letter dated 24-2-2006 (Annexure "A/10") transferring the petitioner to Multan and the petitioner has submitted a request to withdraw the said transfer (Annexure "A/11") but the petitioner was induced to resign from his job and for that he will be paid extra benefits of Rs,20 Lacs over and above to his legal dues. The petitioner therefore apprehending some adverse action regarding his employment has filed the present petition.
2. The respondents were served and they have filed their written comments and counter affidavit denying the acts of unfair labour practice on their part. The respondents have stated that the petition was not maintainable in law as the petitioner has sought prohibition against the exercise of legal and contractual right of the employer for initiation of disciplinary action against the workman for remaining absent for more than 10 days and that initiation of disciplinary action is not an unfair labour practice. They have denied the claim of the petitioner as stated in para-1 of the petition that he was designated as Tyre Builder as the petitioner was reappointed in terms of letter No,HRDHRD:4629/ALI/WP dated 11-4-1995 and the terms and conditions were accepted by the petitioner as Service Helper and no way the petitioner was appointed as Tyre Builder as claimed by him. Copy of appointment letter dated 11-4-1995 produced as Annexure "R/2" and joining report as Annexure "R/3". It is stated that the petition is misconceived as the petitioner has not attached copy of latest change of office-bearers wilfully and deliberately which was approved on 28-1-2006 (wrongly typed 28-1-2005) in which Muhammad Wahid Khan was elected as President of the union and the documents annexed as Annexure "A" to the petition (change of office-bearers) dated 3-12- 2003, which has long ago expired and this expired document has been filed with. Mala fide intention in order to make an attempt to misguide this Bench of Commission. It has been stated that the respondent No,1 Factory is tyre manufacturing unit and due to pressure from Automobile Industries the respondents being manufacturer and supplier of tyre is required to maintain the pace of production and dispatch so that upward driven demand of Automobile Industry is not disturbed and in these compelling circumstances the respondents continued operation of its production on holidays for which overtime @ of triple wages in addition to ex-gratia and lucky draw for 20 workers were paid to the workers @ Rs,2500 per head. It is denied that the workers were being threatened by the respondents for dismissal from employment if they did not attend on 3-11- 2005 and 5-11-2005 and the petitioner has not pointed out any worker to whom such alleged threat or disciplinary action were taken and these are merely bald and general allegations. It is further stated that on 3-11-2005 and 5-11-2005 large number of workers did not attend work of overtime and treated as Eid holidays. The respondents have filed daily attendance report of 3-11-2005 and 5-11-2005 as Annexures "R/4" and "R/5" and none of the workers were proceeded departmentally. It has been denied that the respondents along with other Departmental Managers took round of the factory and threatened the workers collectively and individually for removing them from employment, if they did not attend Eid holidays as none of the workers were proceeded departmentally which itself proves that no such threat was extended. As regard letter of the union dated 7-11- 2005 which has been attached as Annexure "A/1" with the petition it has been stated that this letter was responded by the respondents vide letter dated 8-11-2005 filed as Annexure "R/7" which was received by the General Secretary of General Tyre and Rubber Workers Union. The said letter dated 7-11-2005 (Annexure "A/1") along with other letter dated 8-11-2005 (Annexure "A/2") along with another letter dated 11-11-2005 (Annexure "A/3") all were withdrawn by the said union signed through General Secretary on 16-11-2005 and copy of letter dated 16-11-2005 has been produced as Annexure "R/8". It has been denied that on 8-11-2005 respondents went inside the factory and delivered speeches against the union and the petitioner during working hours. As regards to the claim of the petitioner that previously on the occasion of Eid-ul-Azha there was an agreement with CBA on 26-1- 2004 and it has been stated that there is no law which makes it compulsory on the management to enter into an understanding, which even otherwise was not an agreement as claimed to operate the factory as implied by the petitioner the factory cannot be operated without any understanding with CBA. Even otherwise it cannot be expected that each year the respondents make so-called understanding as the workers are willing to work for financial gains which they avail during Eid-ul-Azha Holidays. The respondents have denied the plea of the petitioner in para.6 of the petition that the respondents malafidely with ulterior motives tried to crush the union by force, compulsion, threats and duress as all were stereotyped allegations and were vehemently denied. The claim of the petitioner in para-7 of the petition was vehemently denied. It has been denied that the management of respondents has been indulging or interfering in the union elections or referendum. It has been denied that the petitioner was threatened from time to time as during the course of referendum proceedings before Provincial Registrar of Trade Unions, no such allegations were made by the petitioner. The respondents have admitted the claim of the petitioner in para.8 of the petition that union has served charter of demands but it has been vehemently denied that notice was sent or conciliation meeting was called as no any such notice of conciliation has been attached. In fact bilateral negotiations were being conducted and in pursuance thereof negotiations have been held. It has been denied that the respondents management was delaying the resolution of industrial dispute. It has been stated that in fact it is right of both the parties to enter in to negotiations but it cannot be expected that the respondents management will accept all the demands which have far reaching financial implications on the respondents. Copy of minutes of bilateral negotiations being held is produced as Annexure "R/10".
The claim of the petitioner in para.9 of the petition has been denied. It is denied that the respondents were bent upon to crush the petitioner's union or that the respondents management issued and delivered Annexure "A/8", transfer letter by way of unfair labour practice. The petitioner earlier was promoted as Office Assistant on 18-2-2005 vide letter of promotion Annexure "R/11" and it was due to exigency of work whereby Office Assistant was required when services of petitioner were transferred and posted at Company's Service Center located at Shahrah-e-Faisal, Karachi. It was denied that there was no job at place of transfer suitable to the status of the petitioner, as petitioner in his capacity as Office Assistant is required in terms of employment to perform work at any of the location of respondent No,1 As regards the grievance notice of the petitioner dated 15-11- 2005 the petitioner himself has admitted that instead of pursuing the said remedy of grievance petition the petitioner has filed the present titled petition with mala fide intention. It has been vehemently denied that transfer order dated 7-11-2005 was issued malafidely, illegally and amounted unfair labour practice. The allegation of non-intimation to the inspector of Factories itself does not justify the petitioner to file the petition for unfair labour practice. The transfer cannot be challenged in the present proceedings as transfer letter has been issued by the Senior Manager Administration who is also Notified Factory Manager under the Factories Act, 1934 and copy of Form "A" sent to the Directorate of Labour in this regard and has been filed as Annexure "R/12" and all the allegations in this respect appear to have been made with mala fide intention merely in order to justify filing of present petition alleging unfair labour practice with stereotyped claims and allegations which have no relevancy whatsoever of prayer made in the petition. It has been denied that conciliation has failed and the document which has been referred to as Annexure "A/4" was not subject matter of conciliation as the same was issued in the context of complaints made by the union which were subsequently withdrawn. It has been stated that claim of the petitioner in para.11 of the petition was also misconceived as the petitioner was not office-bearer hence the question of talking with the petitioner or otherwise does not arise nor there was any occasion for allowing the petitioner to sit in the charter of demands meeting in the absence of the status of the petitioner as an office-bearer. Even the General Tyre and Rubber Workers Union had not communicated the name of the petitioner as a Member of negotiating team to negotiate. It has been denied that the respondents demanded resignation of the petitioner from the office of President. It has been denied that the respondents compelled, harassed or coerced the petitioner.
This way it has been stated that the petition filed in the present form was not maintainable and was liable to be dismissed.
3. Along with main petition application under Regulation 32(2)(c) of NIRC (P&F) Regulations, 1973 was filed and after hearing both the parties the same was dismissed vide order , dated 2-6-2006 observing that the petitioner has failed to establish a case for grant of interim relief.
4. At the trial of the petition the petitioner filed his affidavit-in-evidence where he has reiterated the entire facts which he had earlier made in the petition and has also filed some documents. The petitioner was cross-examined by learned counsel for the respondents. From the respondents side one Tariq Soulat Senior Manager Administration of the respondents company filed his affidavit-in- evidence on 9-12-2009 and subsequently he was cross-examined by learned counsel for the petitioner.
5. I have heard arguments of Mr. Shafique Qureshi, learned counsel appearing on behalf of petitioner and Syed Vizzarat Hussain Zaidi, learned counsel appearing on behalf of other respondents.
6. Mr. Shaique Qureshi, learned counsel for the petitioner has argued that at the time of filing of the petition the petitioner has been President of the CBA Union for so many years and even at present he is President of the CBA Union and the petitioner was transferred from one work to another work without justification and within one month of his earlier transfer the petitioner was transferred from Karachi to Multan though the petitioner raised his objection but his transfer was not cancelled.
According to appointment letter the petitioner was required to work within Karachi and word "work" means within the premises of factory and as per dictionary meaning of work it does not say any other place. It has been argued that the respondents' witness has admitted that subsequent appointment letter bears that "You are liable to be transferred in any place of Pakistan" but no one else was transferred in lieu of the petitioner who has refused to join at Multan and at Multan there is only Warehouse where only loading and unloading of tyre is being carried out and there was no technical job at Multan. It has been argued that petitioner was Area Councilor and his father was even employed with the respondents and the petitioner has long association with the respondents Management and his transfer order has been issued with mala fide intention which is an act of unfair labour practice on the part of respondents as the respondents wanted to keep away the petitioner from his trade union activities. It has been argued that S.O.2(a) provides that transferee person is to be informed about terms, and conditions of transfer, but no any such terms and conditions were mentioned in the transfer letter. It was, therefore, argued that transfer of the petitioner is to be declared as an act of unfair labour practice.
7. On the other hand Syed Vizzarat Hussain Zaidi, learned counsel appearing on behalf of the respondents argued that petitioner in his cross-examination has admitted terms and conditions of appointment letter and petitioner himself has admitted that he was willing to proceed for Multan. It is argued that the transfer order provides that petitioner A has been transferred as per terms and conditions of his employment. It has been argued that plea regarding S.O.2(a) was not raised in the pleadings and even it has not been taken during the evidence. The management has not violated any settlement and it is right of the employer to transfer his employee and all the transfers of the petitioner were made within four corners of law. It is argued that since the petitioner has failed to resume his duty at Multan as such he was served with show cause notice/charge sheet, inquiry letter but he did not participate in the inquiry and the Enquiry Officer recommended the action of dismissal from service and the management has issued dismissal order and the said dismissal order was challenged by the petitioner in Labour Court No,4 Karachi which allowed the petition filed by the petitioner and directed the respondents to hold fresh inquiry and in view of the direction of the learned Labour Court fresh inquiry was conducted which was participated by the petitioner.. He was given full and fair chance and thereafter fresh dismissal order was issued by the management. Again the petitioner filed his grievance petition before the Labour Court which was also dismissed and the petitioner has thereafter preferred appeal before the Labour Appellate Tribunal which is presently pending. It has been argued that the petitioner cannot on two forums for his grievance and since the petitioner is not in employment he has no right to file the present petition.
8. I have given my anxious consideration to the arguments advanced by both the learned counsel and I myself have gone through the pleadings, evidence and documents produced by the parties.
9. The petitioner vide transfer order dated 24-2-2006 (Annexure "A/10") was transferred from Karachi to Multan Warehouse. In this context it is necessary to examine appointment order of the petitioner. It is not only in the appointment order but the petitioner during his cross-examination has admitted that:--- "I had accepted the terms and conditions as per appointment order and had obtained the copy of appointment order after signing it. I see appointment letter dated 11-4-1995 produced as Annexure "R/2" and say that it is four pages order and it bears my signature. At page 3 terms and conditions are defined from (a) to (0. Terms and conditions mentioned in clause (b) is that "You may be required to work in any shift any department or any division as per requirement of the company, at any time". Likewise term and condition mentioned in clause (c) is that: "you can be transferred at any official work place of the company at any time and your designation can also be changed on the sole discretion of the Company keeping in view of the same grade and pay and no objection will be made by you if it happens. In case you do not accept such change, it could disqualify you from the services of the company." The above terms and conditions have not been challenged by me in any court of law till to date."
10. From the above clear admission of the petitioner that he has accepted the terms and conditions and as per terms and conditions he was liable to be transferred at any work place and that his designation can also be changed. The petitioner has no legal right to challenge transfer merely on the ground that since he was union activist as such the management in order to keep him away from the union activities has transferred him from Karachi to Multan.
11. Very surprisingly the petitioner at the time of transfer and even at the time of filing of the present petition was not office-bearer of the union. The last change of office-bearers was effected on 28-1- 2006 in which Muhammad Wahid Khan was elected as President of the Union and the same has been filed by the respondents along with statement dated 30-5-2006. The petitioner's name is no where mentioned as the office-bearer of the union. The petitioner with mala fide intention at the time of filing of the present petition has produced the change of office-bearers dated 3-12-2003 but later on in the year 2005 there has been fresh change of office-bearers and such list has been produced by the respondents management along with statement dated 30-5-2006. The petitioner was transferred vide order dated 7-4-2005 and subsequently he was transferred vide order dated 24-2-2006 and he has admitted that:--- "I have not challenged my transfer order dated 24-2-2006 (Annexure "A/10") before any forum between 24-2-2006 to 22-4-2006."
12. The petitioner has already invoked the remedy in terms of section 46 of the I.R.O., 2002 admittedly he has filed grievance petition as claimed by him in para.9 of the petition and therefore, the petitioner cannot be permitted simultaneously to invoke two parallel remedies one under section 46 of the I.R.O., 2002 before the Labour Court and second before this Bench of Commission under the garb of mala fide reasons of unfair labour practice.
13. As already stated that the petitioner has not attached the latest change of office-bearers wilfully and deliberately which was approved on 28-2-2006 in which Muhammad Wahid Khan was elected as President of the union and the document which has been annexed as Annexure "A" with the petition i.e, change of office-bearers dated 3-12-2003 which has long ago expired and filing of expired document proves the mala fide intention of the petitioner in order to make an attempt to misguide this Bench of Commission. The respondents have filed latest change of office-bearers dated 28-2-2006, (Annexure "R/18") along with statement dated 30-5-2006. The petitioner since is not an office-bearer, as such has no right to invoke the jurisdiction of this Bench of Commission.
Reliance in this respect is made to 1987 PLC 330 (Full Bench of Commission) and 1991 PLC 876 (Lahore High Court).
14. The petitioner by filing the present petition has sought prohibitory order against exercise of legal and contractual right of the employer for initiation of disciplinary action against workman for remaining absent without permission for more than ten days as provided in terms of S.0.15 of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and initiation of disciplinary action is not an unfair labour practice in exercise of such statutory right and cannot, ipso facto, be misconstrued as act of unfair labour practice. Reliance is placed on 2001 PLC 149 (Full Bench of Commission) 2006 PLC 556 and 2002 PLC 87 (Division Bench of Sindh High Court).
15. In very short the sum and substance of the petition filed by the petitioner is that he is an office- bearer of the union and he was therefore being victimized and it was observed by their Lordships in case reported as 1969 PLC 439 at page 444: "Bare allegation of mala fide, harassment or victimization without any specific allegation or circumstances would not be sufficient to establish any one of these grounds."
In view of above facts and circumstances and case law referred above I am of the opinion that the petitioner has failed to establish a case of unfair labour practice on the part of respondents, therefore the petition merits no consideration and the same stands dismissed.