' By Office Order, dated 6th May, 1980, as modified by Office Order, dated 8/10th May, 1980, 137 permanent workmen of the P.
1. D. C. Larkana Sugar Mills, Naudero were transferred for service to the P.I.D.C. Sbandadkot Textile Mills Ltd., Shandadkot. Both the Larkana Sugar Mills Employees' Union, Naudero, which is the Collective Bargaining Agent in the P. I. D. C. Larkana Sugar Mills and the Shandadkot Textile Mills Employees Union, which is the Collective Bargaining Agent in the P.I.D.C. Shandadkot Textile Mills, Shabdadkot, challenged the orders of the learned VIith Labour Court under section 34, I. R.
0. Alongwith their petitions, both the unions filed separate applications under 0. XXXIX, Rr. 1 and 2, C.
P. C. Praying for the grant of interim injunction restraining the Larkana Sugar Mills from transferring the above 137 workmen to the Shandadkot Textile Mills and the management of Shandadkot Textile Mills from accepting 137 workers of the Larkana Sugar Mills. Both these applications, however, were rejected by the learned Labour Court on the grounds that there was a rule in the P. I. D. C. Projects for the transfer of workmen from one project to another within the province, that the transfers had been made validly under the guidance of the concerned Minister of the Government, that there was evidence to show that the workers had taken and received special grant of Rs, 500 each for taking up their new assignments and that the transfers, which were within the competence of the management, were necessitated due to re-organization and retrenchment in the Larkana Sugar Mills. In consequence of this order, the 137 concerned workers of Larkana Sugar Mills have since taken up their assignment in the Shandadkot Textile Mills. The 2 petitions under section 34,
1. R.
0., filed by the 2 Labour unions, however, were proceeded with and the learned Labour Court, by its order, dated 8th December, 1980, has held that the orders of transfer of the 137 workers are invalid and in violation of the law, equity and natural justice. It has accordingly allowed the prayer of the 2 labour unions for withdrawal of the transfer orders. Aggrieved by this order, both the P.
1. D. C. Larkana Sugar Mills and the P. I. D. C. Shandadkot Textile Mills have preferred a joint appeal to this Tribunal.
2. I have heard Mr. Sardar Ikramullah for the appellants and Mr. Hassan Hameedi, who appeared for the 2 respondents labour unions.
3. Mr. Sardar Ikramullah assailed the impugned order of the learned Labour Court on the following grounds :-
(1) That the transfer of workmen is the inherent right of the employer and cannot be assailed before or interfered with by the Labour Courts, except in special cases ;
(ii) That in the instant case, there was absolutely no mak fide motive in ordering the transfers of the workmen as the transfers were necessitated die to orders of the Minister of Production requiring the termination of services of surplus staff;
(iii) That the transfers have been ordered by the Chairman, P.I.D.C., who is the competent authority in this behalf;
(iv) That the emoluments and conditions of the transferee workmen remain the same;
(v) That the orders of the learned Labour Court suffer from inconsistency in that the view taken by him in the grievance petitions is wholly opposed to the view taken by him in respect of the 2 applications filed by the respondent labour unions under 0. XXXIX, rr. 1 and 2, c.p.c.; and
(vi) That almost all the workers concerned have since about 1 1/2 years, back joined their duties at the Sbandadkot Textile Mills, after drawing the T. A. Facility granted by the P. I. D. C.
4. It is now settled law that an employer is entitled on account of exigencies of his business to transfer his employees either from one branch to another or from one project to another, provided that the transfer is not prohibited by law or motivated by mala fides or is for the purposes of victimization of the workman. In this behalf, I may refer to two decisions of the Indian Supreme Court. In the case of Bareilly Electricity Supply Company Ltd. v. Sirajuddin (1), the Supreme Court of India, while holding that the transfer of employees from one department to another is a matter of internal administration of the employer, observed as follows:-- "Transferring cooly from one department to: another is a matter of internal arrangement and Industrial Tribunale should be very careful before they interfere with the orders made in the discharge of the management function in that behalf. The argument that the appellant did not give any reason for this re-transfer, though there was hue and cry against it, seems to us to be wholly beside the point. Even the Tribunal did not feel inclined to make a definite finding that it was because of the Union activities of the respondent that he was re-transferred: it has only suggested that as a possibility. The failure of the appellant to give specific reason for the re-transfer of the respondent appears to be the sole basis cn which the conclusion of mala fide is founded. It is hardly necessary to emphasise that the findings of mala fide can be made by Industrial Tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made lightheartedly or in a casual manner as has been done by the Tribunal in the present case.
Therefore, without deciding the other points raised in the pleadings and confining ourselves to the only ground on which the Tribunal has based its decision, we must hold that the order of re- instatement is patently unreasonable and must be set aside."
5. The above view was reiterated by the Supreme Court of India in the case of Syndicate Bank Ltd. v.
Their Workmen (2). In that case the question which arose for determination by the Supreme Court was whether the management of Banks are entitled to decide, on a consideration of the necessities of banking business, whether the transfer of an employee should be made to a particular branch. Holding that the management was in the best position to judge how to distribute its employees between the different branches, the Indian Supreme Court thus expressed itself:--- " There is no doubt that the banks are entitled to decide on a consideration of the necessities of banking business whether the transfer of an employee should be made to a particular branch.
There is also no doubt that the management of the bank is in the {{FOOT NOTE}}
(1) 1961 PLC 449 (2) 1967 L P C 357 {{FOOT NOTE}} ' best position to judge how to distribute its employees between the different branches. We are, therefore, of opinion that Industrial Tribunals should be very careful before they interfer with the orders true that if an order of transfer is made mala fide for some ulterior purpose, like punishing an employee for his Trade Union activities, that Industrial Tribunal should interfere and set aside such an order of transfer considered to be the legal exercise of the power given by law. But the finding of mala fide should be reached by Industrial Tribunals only if there is sufficient and proper evidence in support of the finding. Such a finding should not be reached capriciously or on flimsy grounds as the Industrial Tribunal has done in the present case."
6. No doubt in the case of Messrs Pakistan Textile Mills Ltd., Karachi v. Elected Representatives of the Workers (1), my learned predecessor held that it was not permissible for an employer to transfer his workmen from one Concern to another Concern, although both the Concerns may belong to him and at best he may terminate the services of any workmen under Standing Order 12, after giving them one month's notice or pay, but the decision in that case was founded on 2 important circumstances, the first being that the workers themselves had demanded that their services be terminated in accordance with the provisions of the Standing Orders, and secondly, there was no specific provision in the rules of the company or practice in the company for transfer of employees from one project to the other. In the instant case, neither of these conditions have been fulfilled. No demand was made by the workmen for the termination of their services in accordance with the Standing Orders. Furthermore there is a rule of service in the P.I.D.C. Providing for transfer of the staff from one project to another project in the province as has been pointed out by the learned Labour Court itself while rejecting the applications of the respondent unions for restraining the Larkana Sugar Mills and the Shandadkot Textile Mills from implementing the order of transfer of the workmen.
7. Section 8-A, I. R.
0., prohibits the transfer of an officer of a trade union or a workman during the pendency of an application for registration of the trade union with the Registrar, save with the prior permission of the Registrar. This would seem to indicate that where no such application for registration is pending with the Registrar, the transfers would ordinarily be permissible and would be solely within the discretion of the employer. Of course, as already pointed out, if the transfers are for the purposes of victimization of any workman or amount to mala fides, the transfer orders would be invalid and could be struck down and held invalid by the Labour Courts.
8. An act done mala fide is without jurisdiction and is by its very nature, illegal and void act. In the case of Abdul Rauf v, Abdul Hameed Khan (2), Kaikaus, J. Observed as follows :- "A mala fide act is by its nature an act without jurisdiction. No Legislature when it grants power to take action or pass an order contemplates a mala fide excercise of power. A mala fide order is a fraud on the statute. It may be explained that mala fide order means one which is passed not for the purpose contemplated {{FOOT NOTE}}
(1) 1972 PLC 581 (2) PLD 1965 SC 671 {{FOOT NOTE}} ' by the enactment granting the power to pass the order, but for some other collateral or ulterior purposes."
9. Again, in the case of Muhammad Jameel Asghar v. Improvement Trust (1), the same learned Judge observed as follows :-- "However, with respect to mala fides the jurisdiction of the civil Court can never be taken away for mala fide act is in its very nature an illegal and void act and the Civil Court can always pronounce an act to be mala fide and therefore void."
10. Both the above decisions have been quoted with approval by Hamoodur Rahman, C. J., in the case of State v. Ziaur Rehman (2).
"Male de", according to plain Dictionary meaning is "in bad faith." Section taken in bad faith is one that is usually taken with a desire to do harm. In other words. It is motivated by ends other than the alleged purposes, as was observed by the Azad Jammu and Kashmir Supreme Court in the case of Sikandar Hayat Khan v. Government of Azad Jammu & Kashmir (3). In the case of Federation of Pakistan v. Saeed Ahmed (4), mala fide was explained as follows "Main fides literally means 'in bad faith'. Action taken in bad faith is usually action taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorised by the law under which the action is taken or action taken in fraud of the law are also mala fide.
12. A learned single Judge of the Lahore High Court, in the case of Muhammad Tufail v. Province of Punjab(5), while holding that a mala fide act is a nullity and not an act within the Statute under which it was purported to have been taken, observed that "personal grudge against the person in respect of whom action is taken, may also prove mala fides."
13. However, the burden of proof for establishing mala fides is on the party which alleges it and if one kind of main fides is alleged, proof of a different kind of mala fides cannot be ad mitted. In the instant case, although Mr. Hassan Hameedi, the learned counsel for the respondent unions, strongly urged that the transfers of 137 workmen were motivated by mala fides and for the purposes of victimization and curbing of the union activities, but he was unable to substantiate his contentions with reference to any tangible evidence. Even if the contention of Mr. Hassan Hameedi is accepted that the transfers affected two officers of the labour union of Larkana Sugar Mills, though this allegation is strongly denied by the appellants, this fact would not support the allegation of mala fides, for, as held by the Industrial Tribunal, in the case of Road Transport Employees' Union v. West Pakistan Road Transport Board' Lahore, (6), transfer even of a trade union officer is a matter exclusively in the discretion of the management. A perusal {{FOOT NOTE}}
(1) PLD 1965 5 C 698 (2) PLD 1973 SC 49
(3) PLD 1978 SC (AJ&K) 12 (4) PLD 1974 SC 151
(5) PLD 1976 Lah. 1015 (6) 1963 PLC 809 {{FOOT NOTE}} ' of the minutes of the meeting of the Chairman of the Corporations held under the chairmanship of Minister of Production, on 9th February, 1980, extracts wherefrom were produced before the learned Labour Court, indicate that it had been decided with the approval of the Minister that the services of excess man powers should be terminated in accordance with a fixed plan. It appears, however, that instead of terminating the services of the extra workers in the Larkana Sugar Mills, the Chairman, P. I. D. C., decided to transfer them to the Shandadkot Textile Mills. On transfer to the latter mills, the transferee workmen were not only to retain their existing terms and conditions of service but were also entitled to draw a sum of Rs, 500 per worker as transfer grant, which grant it appears has been drawn by most of the workers who were ordered to be transferred. It is clear from the order, dated 15th March, 1980, of the Chairman, P. I. D. C. Similarly, the grant of the transfer allowance has not been disputed by the respondent-Union. Their contention of the transfer orders being mala fide and for the purpose of victimization of workermen and curbing the union activities is grounded in the fact that while on the one hand as many as 137 permanent workmen were transferred from the Larkana Sugar Mills to the Shandadkot Textile Mills, a number of temporary workmen were employed in the Larkana Sugar Mills. Reliance has also been placed on a report of certain officers of Shandadkot Textile Mills to the effect that the proposed transfers of the workmen were not justified. Now as regards the employment of temporary workmea by the Larkana Sugar Mills, it may be pointed out that the mills are a seasonal factory and consequently required to employ temporary staff during the crushing season. Moreover, an examination of the orders appointing the temporary workmen show that not only the persons who were temporarily employed were field workers while the transferee workmen, were mainly office workers, supervisors and technicians, but further the temporary workmen were employed for a specific period ranging from a few days to a maximum of 10 weeks only. It would obviously have been inappropriate and unworkable to employ the permanent workmen of Larkana Sugar Mills, who belonged to different categories, in the temporary jobs on which the temporary employees had been employed. It may also be pointed out that according to the mill management, the persons who were proposed to be transferred to the Shandadkot Textile Mills, were not willing to perform the temporary jobs on which the temporary employees had to be engaged.
14. As regards the report, dated September, 1979, stated to be of some officers of the Shandadkot Textile Mills to the effect that the transfer of staff from Larkana Sugar Mills to Shandadkot Textile Mills was not only inappropriate as the transferee workmen would be unable to perform duties at the Shandadkot Textile Mills, but further it was unjustified since it was proposed to take additional staff in the Larkana Sugar Mills, it may be pointed out that it is not established that this report in fact is of any officers of the Shandadkot Textile Mills, or even if the report is by such officers, whether they were authorized to make such a report. Furthermore, these officers could not be aware of the working conditions of the Larkana Sugar Mills or the position whether the staff of the Larkana Sugar Mills was surplus or not. They seem to have merely considered the matter from their own view and thought that the working of the Shandadkot Textile Mills would be affected by the non-technical staff of the Larkana Sugar Mills, apart from the fact of their right of partronage to engage other staff. Since the decision of the transfer was taken at the highest level and was motivated by humanitarian consideration to ensure that the surplus staff is not deprived of their jobs, the report of the officers of the Shandadkot Textile Mills would be of no significance and, on its basis, it cannot be said that the transfers were mala fide or motivated by object of victimization of the workmen.
15. For the reasons discussed by me above, I am of the view that the transfer orders were not only within the complete competence of the P. I. D. C. And in accordance with the rules, but that further they were wholly justified in the circumstances. Moreover, they have been implemented and accepted by the workmen who have taken over their new assignments since 14 years. I would accordingly set aside the impugned order of the learned Labour Court holding that the transfer orders are invalid, and would allow the _appeal.