M.S.H. QURAISHI (CHAIRMAN).--This appeal has been heard under subsection (4) of section 22-B of Industrial Relations Ordinance, 1969 in the absence of the third Member Mr. Aziz Ahmed who had to attend to duties at the Headquarters Office, Islamabad in the absence of the Chairman and other Members there.
2. The appeal is directed against the order dated 21-7-1986 passed by Mr.S. Rais Ahmed Jafri, Senior Member of the Commission, in a petition brought by Muhammad Sarwar, respondent under section 22-A(8)(g) of the Industrial Relations Ordinance, 1969 in which he assailed his transfer from Lahore to Sialkot as constituting unfair labour practice.
3. The employees of the erstwhile Road Transport Board had formed a union called "Road Transport Board Mazdoor Union, Central Bus Stand, Lahore" which had been certified to be a Collective Bargaining Agent in 1980. The Board was later dissolved and was succeeded by the Punjab Road Transport Corporation (P. R. T. C.) whereupon, the said Union changed its name to "Punjab Road Transport Corporation, Mazdoor Union, Central Bus Stand, Lahore" with the approval of the Registrar, Trade Unions, Lahore, with effect from 12-8-1985. Muhammad Sarwar, respondent, an Assistant Depot Superintendent, was elected on 22-1-1986, as its Propaganda Secretary. The case of the respondent was that as his Union, being the C.B.A., had been advancing the cause of the workers of the Central Bus Stand and had on occasions resisted arbitrary and illegal acts of the appellant, the latter harboured a grudge against the officers 6f- the Union and motivated by this grudge, he, after the Corporation was brought under Punjab Essential Services (Maintenance) Act by Notification dated 2-4-1986, embarked upon a campaign of wreaking vengeance upon the officers of the union resulting in "dismissals, terminations and transfers of the officers of the Trade Union so as to cause the union disappear and stop its functioning". Furthermore, on account of vindictive attitude of the appellant, Muhammad Shabbir the President and Khalid Latif Chaudhry, General Secretary, of the Union were arrested on 1-4-1986. Ijaz Ahmad Bhatti the Vice President was transferred to Bahawalpur and the respondent was transferred to Sialkot. In this background, the respondent had urged in his petition that his transfer was an unfair act.
4. The appellant had raised a number of legal objections relating to the jurisdiction of the Commission, the maintainability of the petition and non-accrual of cause of action. But these objections were not pressed and the only points on which the petition was resisted were that (1) the Punjab Road Transport Board having been dissolved, the Union had lost its legal existence, and, therefore, the respondent could not be ascribed any trade union activity for which his transfer could be assailed as being unfair, and (2) the petition was not competent it view of the P.R.T.C.
Having been declared as an Essential Service. On merits, it had been asserted, on behalf of the appellant, that the criminal case against Muhammad Shabbir and Khalid Latif Chaudhry had not been instituted at the instance of the appellant but by a Magistrate upon the allegation that a dacoity had been committed by them in respect of his Court. As for the transfer, it was defended on the plea that the same was "in routine and in exigencies of service".
5. In support of his assertion, the respondent had examined himself and Khalid Latif Chaudhry, General Secretary of the union, while the appellant examined Muhammad Munir their Superintendent. The latter in his evidence sought to establish that as five Assistant Depot Superintendents had been working against the sanctioned strength of four, the respondent was surplus and had accordingly been transferred. The learned Senior Member, held, that the appellant had failed to show that the PIAM union was working as a C.B.A. For all depots of the P.R.T.C. Or that the P.-R.T.C. Mardoor Union was no longer a Registered Trade Union. He rejected the plea that the transfer was on account of the respondent having been surplus or that it was made in routine and accordingly accepted the petition and cancelled the transfer order of the respondent. Hence this appeal.
6. During the hearing of the arguments, we drew the attention of the respective counsel of the parties to the extract from an order passed by one of us (Mr. Mahmood Akhtar) to the effect that the P. R. T. B. Having been dissolved, the Unions of its employees also stood dissolved, with which the learned Senior Member, had not agreed, and asked if this would present any difficulty for the parties in the hearing of this appeal by this Bench with Mr. Mahmood Akhter as Member of it.
Learned counsel for the parties replied in the negative and expressed full confidence in the Bench.
The appellant's counsel also stated that he would not press the plea of non-maintainability of the petition on account of the PR.T.C. Having been declared as Essential Service.
7. The first point raised on behalf of the appellant was that on the registration of PIAM as Trade Union, the Unions registered with the Provincial Registrar of Trade Unions, had lost their entity and that the respondent's Union, being one such Trade Union, did not exit in the eye of law and as such he had had no Trade Union activity on the basis of which the order of transfer could be assailed as affecting his participation in the activities of a Trade Union. For this he relied on a decision of a Full Bench of this Commission in Re: Pakistan Spencers Employees Union 1977 PLC 20. In that case the majority view, was that a union could be certified as Collective Bargaining Agent for those branches of the organisation in which it has membership. Another case cited i.e., Messrs Jang Publications Limited v. Registrar of Trade Unions, Sind PLD 1984 Kar. 292 was to the effect that on determination of one or more bargaining units under section 22-EE, locally organised trade unions would have no locus standi and authority of Registrar to register Trade Union or to determine a bargaining agent would cease to exist. It had, nevertheless, been categorically held in that case that the bargaining agent already certified by the Registrar could not be deregistered or decertified without invoking provisions of section 22-EE. This latter authority is, therefore, of little help to the appellant. In any case, the difficulty in the appellant's way, however, is that such plea had not specifically been taken in their written statement, nor had proper evidence been led to show that PIAM had been registered afresh after coming into being of the P. R. T. C. Or that it represented all the establishments under the P.R.T.C. Appellant's witness Muhammad Munir had stated "previously before the dissolution of P.R.T.B., different units had their own Collective Bargaining Agents but after the dissolution of P.R.T.C., PIAM Union is the only Union which is Collective Bargaining Agent for all the employees of the P.R.T.C.". But he had gone on to add "it is not in my knowledge that the PIAM Union had obtained a certificate for all the employees of the P.R.T.C. It might be in the knowledge of the Labour Wing of P.R.T.C.. I have learnt from others that PIAM Union is the Collective Bargaining Agent for whole of the P.R.T.C. And I have not seen the Collective Bargaining Agent certificate of the PIAM Union myself". Obviously nothing could turn on such evidence. No exception can, therefore, be taken to the finding of the learned Senior Member that "the respondent (appellant) have failed to show that PIAM union is working as a Collective Bargaining Agent for all the depots of the P.R.T.C.".
8. The finding of the learned Senior Member that the appellant was responsible for the arrest of the President and General Secretary of the Union in the dacoity case is however, not borne by the evidence produced. The respondent's witness Khalid Latif Chaudhry himself being one of the persons arrested stated, "the F.I. R. In which I and other officers were arrested was lodged by a Magistrate. It is correct that in the F.I.R. The allegation was that the accused persons looted the amount of fine which was collected by the Magistrate for the contravention of Traffic Rules".
Nevertheless, there are other aspects of the matter which stand against the appellant and which would not warrant interference with the impugned order. The respondent who had been an office- bearer (Propaganda Secretary) of the Union had been arbitrarily picked up for the transfer which was bound to affect his activity as such office-bearer. The plea taken in the written statement was simply that the transfer was "in routine and in exigency of service". In the evidence it, was however, brought out that he was transferred because he was surplus to the job, there being five Assistant Depot Superintendents wording against the sanctioned strength of four, but in this regard the evidence is not free from doubt. In reply to a Court question, the appellant's witness had stated "I do not know since how long five Assistant Depot Superintendents were working at the Central Bus Stand. I cannot say if they were working for the last 8 years or more". If five Assistant Depot Superintendents had been working against four posts for the last many years, then question arises as to what was the urgency to correct the error and even if one was surplus then why the respondent alone had been picked up for transfer. For this no explanation was forthcoming. It was not even the case of the appellant that the respondent was the junior most for which reason he alone could be transferred. On this question the witness stated" I do not know who is junior amongst the Assistant Depot Superintendents. I also do not know whether or not the petitioner is junior most amongst the Assistant Depot Superintendents". No other basis was given as to why the axe must have fallen on the respondent alone who was an active participant in the affairs of his Union. We are, therefore, not inclined to disturb the finding that the intended transfer was an unfair act within the meaning of section 15 of I.R.O., 1969.
The appeal, therefore, fails and is accordingly dismissed.