' The facts in this case, instituted under section 22-A(8)(g) by the petitioner A lam Saied against United Bank Limited alleging unfair labour practice, are briefly stated as follows:--
2. The petitioner entered service in the Bank in 1966. From 1972 he started taking part in trade union activities and became founder President of the United Bank Labour Union. He also became Secretary of the National Federation of Bank Employees. On 28-6-1977 when he was working as an Assistant in the I.I.Chundrigar Road Branch of the Bank a clash took place between two groups of workers. He was implicated in the F.I.R. Lodged in that connection. In order to avoid arrest he did not join his duties until 21-7-1977 when he secured his bail. Still apprehending danger to his life, the petitioner asked the Bank to post him at some other Branch in Karachi. However, on 27-4-1978 he was transferred to Hyderabad Zone. He did not join at Hyderabad but applied for leave on grounds which were not accepted by the Management. He, therefore, moved a grievance petition on 29-7- 1978 before the Labour Court-V, Karachi. That petition was, however, dismissed for non-prosecution on 4-1-1979. Even, thereafter, he did not join his duty at Hyderabad with the result that he was charge-sheeted on 4-2-1979 for unauthorised absence. He replied to the charge-sheet on 11-2- 1979 pleading illness. The matter does not appear to have been pursued by the Bank until 2-11986 when the petitioner was served with a show-cause notice on account of his failure to have joined duty at Hyderabad to which place he had been posted some six years before. He submitted his explanation on 27-1-1986, offered to report for duty at Karachi and sought forgiveness. On 26-2- 1986 he again asked the Bank to allot him duty. On 2-3-1986 the Bank asked him to report for duty at the Zonal Office, Hyderabad on 10-3-1986 on which latter date the petitioner did at last join duty at Hyderabad. He, however, allegedly, resorted to absence from duty for which reason a show- cause notice was issued to him on 9-4-1986. He represented on 24-5-1986 for a posting at Karachi.
Instead he was, by order dated 28-5-1986, transferred from Hyderabad to Nawab Shah and was relieved the same day. The petitioner by letter dated 1-6-1986 indicated his willingness to join at Nawab Shah and sought fifteen days' joining time as well as grant of TA., DA. And Pay for June, 1986.
He did collect these amounts but still did not join at Nawab Shah and applied for leave. This led to the service of the following charge-sheet on him on 30-6-1986 by the Zonal Office, Nawab Shah: "Your services were transferred from Hyderabad Zone to Nawabshah Zone on 28-5-1986 and after being relieved from Hyderabad Zone vide letter dated 28-5-1986, you were required to report at Nawabshah Zone on 3-6-1986 after availing usual joining time of 5 days. Instead of reporting to us, you informed us vide your application dated nil that you have been advised by Head Office to remain at Hyderabad. We had, therefore, advised you vide letter dated 26-6-1986 to submit the copy of Head Office letter, wherein you have been allowed to report for duty at Hyderabad. You have neither submitted us the copy of aforesaid letter nor resumed duty at Nawabshah Zone so far.
' We have made enquiry from Head Office and have been informed that no such instructions to resume at Hyderabad have been issued by Head Office.
' Under the circumstances your absence since 3-6-1986 is unauthorized and constitutes an act of misconduct as well as breach of the provisions of Efficiency and Discipline (Bank's and Financial Institutions) Rules, 1975.
' You are, therefore, hereby charge sheeted and are called upon to submit your written explanation within 7 days as to why disciplinary action should not be taken against you."
' He filed his reply on 6-7-1986 asserting that his transfer to Nawabshah was a measure of harassm ent, that he was not keeping good health and that he had already applied on 27-6-1986 for granting him sixty days' leave and also for adjusting TA./DA. From his salary. The Bank appointed an Enquiry Officer who issued notice for 30-8-1986 but adjourned the enquiry to 8-9- 1986 on receipt of a written request from the petitioner. On this latter date, too, the petitioner did not turn up with the result that the enquiry proceeded ex parte against him. The Enquiry Officer formed the charges against him in the following words: "That Mr. Aslam Saeed was transferred from Hyderabad Zone to Nawabshah Zone on 28-5-1986, and thereafter he was not instructed by any authority to stay at Hyderabad, therefore, he was supposed to resume duty at Nawabshah, but he failed to resume the duty, on the contrary, he applied for medical leave to Zonal Head Hyderabad on 276-1986 (after his transfer to Nawabshah Zone). In my opinion, he was supposed to apply for leave to Zonal Head Nawabshah, therefore, his leave is unauthorised."
' The petitioner, thereupon, filed the present petition on 20-9-1986 which he amended on 27-9- 1986. In the light of the report of the Enquiry Officer the Bank terminated his service by letter dated 12-11-1986 whereafter he further amended his petition on 3-12-1986.
' In this last amended petition the petitioner prayed to the Commission to take action against the respondent bank for acts of unfair labour practice and to hold that in the absence of any disciplinary action taken against him for the presumed abscondance and for the alleged misconduct there was no justification for depriving him of allocation of duties and payment of his salaries for the period from July, 1977 to 9th March, 1986 to which he was entitled. He also prayed that the order dated 12-11-1986 of termination of his service be set aside and he be reinstated.
4. In their comments filed by the Bank, the allegation of unfair labour practice was denied and on that basis the maintainability of the petition was challenged on ground of lack of jurisdiction. It was stated that the petitioner had persistently avoided to resume duty at Hyderabad by submitting medical certificates but did not appear before the Bank's Medical Officer despite instructions given to him. It was further st; ted that at least after the dismissal of his petition before the Labour Court on 4-1-1979 he should have joined duty at Hyderabad but that he had absconded. When the matter came to light in late December, 1985, he was issued a show-cause notice on 2-1-1986. It was explained that his transfer from Hyderabad to Nawabshah was on account of the fact that he had been found surplus to the requirement of the Zonal Office, Hyderabad. It was pointed out that although he had agreed to proceed to Nawabshah and had drawn TA./DA. Etc. For the transfer he had not joined there and had misguided the Zonal Head, Nawabshah that he had been allowed to stay at Hyderabad by the Head Office but that when he failed to produce any such order from the Head Office he was charge-sheeted on 30-6-1986 by the Zonal Office, Nawabshah for his unauthorised absence from duty at Nawabshah.
5. After going through the pleadings of the parties the following issues were framed on 19-2-1987: "(a) Whether the petitioner was denied allocation of duties from 1-7-1977 to 9-3-1986. If so, whether the same constitutes unfair labour practice?
(b) Whether the payment of salary of the petitioner for the period from 1-71977 to 9-3-1986 had been denied. If so, whether the same constituted unfair labour practice?
(c) Whether the termination of the services of the petitioner by order dated 12-11-1986 was illegal and constituted unfair labour practice?"
' Both sides, thereafter, led evidence. The petitioner examined himself as P.W.1 and produced Islam Hussain, Secretary General of National Federation of Bank Employees as P.W.2. In his evidence he admitted that he had lost in the general election of his union held in 1974 in which the rival group led by Sharafud Din was elected. In his cross-examination he admitted "I had not contested the union election held in 1977". He, however, asserted that he was presently Secretary General of the National Federation of Bank Employees. In regard to his transfer to Hyderabad he admitted "However, I did not go to Hyderabad and continued approaching the higher officers including its President made various representations also up to 1986 but the same evoked no reply". He admitted in his cross-examination that even after the order of the Labour Court he did not report for duty at Hyderabad which according to him was because of his sickness. Nevertheless, he stated "I continued my demand for the arrears of salary for the period prior to 10th March, 1986 but I was not paid anything " In regard to his transfer to Nawab Shah he did not deny that he had drawn "Advance salary, transfer grant and TA. And DA.", but he admitted that he did not join Nawabshah till the termination of his service. His witness Islam Hussain stated that as an office-bearer of the National Federation of Bank Employees he had approached the Management of the United Bank Ltd. In connection with the employment of the petitioner and had requested them to stop his victimization and take him back into service.
6. The Management in their defence produced Akbar Sultan, Assistant Vice-President as D.W.1, Syed Lutaf-e-Ali Shah, Zonal Head, Nawabshah at the relevant time as D.W.2 and S.M. Taqi Zaidi the Enquiry Officer as D.W.
3. Akbar Sultan stated that in December, 1985 the Recovery Cell at the Head Office started to find out the names of those employees who had defaulted in payment of their loan installments and that in this connection it was discovered that the petitioner Aslam Saeed was also a defaulter. He contacted the Zonal Office, Hyderabad and on receipt of information that the petitioner had not reported for duty there, a show-cause notice was issued to him on 2-1-1986. He admitted that no action had been taken against the petitioner in furtherance of the charge-sheet dated 4-2-1979 until 1986 nor was any domestic enquiry conducted in respect of the said charge-sheet. He also admitted that "no salary or other emolument was also paid to Aslam Saeed during this period".
Syed Lutaf-e-Ali Shah, D.W.2, stated that he was short of staff and had requested the Circle Head for some staff by transfer and that it was on this account that the petitioner had been transferred to Nawabshah. He produced letter Exh.D.W.2/2 addressed by the petitioner to him stating that he had been advised by Mr. Iqbal Habib of the Bank by letter dated 3-6-1986 to remain at Hyderabad but that when he (petitioner) was asked by letter Exh.D.W.2/3 to produce that letter of Mr. Iqbal Habib the petitioner did not reply. S.M. Taqi Zaidi, D.W.3 who had held the enquiry proved his report of that enquiry.
7. At the conclusion of the evidence, both parties submitted their arguments.
8. The case of the petitioner is that the denial of allocation of duty to him from 1-7-1977 to 9-3-1986 and the non-payment of salaries to him for that period constituted unfair labour practice. This contention is subject-matter of issues (a) and (b) reproduced in para. 5 above. By his own admission he had absented himself from duty from 29-6-1977 to 21-7-1977 and then when he was transferred to Hyderabad on 27-4-1978 he did not report for duty there but challenged the transfer before Labour Court. His petition, however, was dismissed on 4-1-1979 against which dismissal he did not agitate any further. Having thus acquiesced in the dismissal of his grievance petition he was expected to have joined his duty at Hyderabad but he did not do so in spite of his having first been charge-sheeted on 4-2-1979 and then served with a show-cause notice on 2-1-1986. He finally accepted hi transfer and joined duty at Hyderabad on 10-3-1986. He never challenged his transfer to Hyderabad on ground of unfair labor practice. He started working there. His present petition was filed only after he had been transferred to Nawabshah. In view of his acquiescence in the order of the Labor Court dismissing his grievance petition against his transfer to Hyderabad, his acceptance of the transfer by ultimately joining duty at Hyderabad and his having not taken the plea of unfair labour practice during the relevant time, it is too late in the day to raise that plea while challenging a subsequent transfer order. Having once accepted the transfer, it is not open to the petitioner to turn around belatedly to challenge the same as constituting unfair labour practice.
9. Even otherwise, there is no proper basis to hold that he had been denied allocation of duty. His place of duty was Hyderabad to which place he had been repeatedly asked by the Bank to report for duty. If he did not comply and the non-compliance was as is clear without reasonable excuse, he cannot plead denial of allocation of duty.
10. In the circumstances of the case I am hot satisfied that the plea of unfair practice can be raised at such belated stage or that there is sufficient and proper material to justify the plea. Issues (a) and (b) are therefore decided against the petitioner.
11. As regards the plea that the termination of service constituted unfair labour park ice, no proper material has been furnished to establish that the transfer to Nawabshah was on account of his trade union activity. According to the evidence of Syed Lutaf-e-Ali Shah, D.W.2, the witness had, infact, asked for some staff by transfer and accordingly the transfer of the petitioner had been ordered. It I to be noted in this connection that the petitioner had even shown his willingness to proceed to Nawabshah and for that purpose had also drawn his necessary TA. And DA. Etc. In this background and in the absence of proper and sufficient material, no case of unfair labour practice can be said to have been made out against the management in respect of his transfer to Nawabshah or of the consequent action taken against the petitioner for his refusal to comply with the order of transfer.
12. The petition fails and is, accordingly, dismissed.