1. The facts of the prosecution case may briefly be stated as follows:- The complainant, Rafiq Ahmad Khan Lodhi, is an employee of the United Rank Ltd., Lyallpur, of which the accused, namely, Ashiq Hussain Farooqi is the Vice-President. On or about 7th -November 1972, the complainant along with several other employees formally withdrew from the membership of the United Hank Ltd. Employees' Union and formed a separate Union under the name and style "United Bank Limited Progressive Employees' Union, Lyallpur" (hereinafter called as "Progressive Union"). Later, they made an application to the Registrar, Trade Unions, Sargodha Region. Lyallpur, for the registration of the Progressive Union. The Registrar issued the requisite certificate (Exh. PD) of registration of the Trade Union on 21st November 1972. Earlier on 10th November 1972, the Progressive Union notified the names of its officers to the employer (accused) In writing vide Exh.
2. PB/1, of which the receipt was acknowledged in the peon book (Exh. P--). It was mentioned therein that Muhammad Ashraf (P. W. IV), Rafiq Ahmad Khan Lodhi (complainant) and Shaukat Hayat (P.
3. W. V) have been appointed as President, Vice-President and General Secretary, respectively of the Progressive Union.
4. On 13th November 1972, the accused transferred Muhammad Ashraf (P. W. IV) and Shaukat Hayat (P. W. V) from Lyallpur to Kundian and Jauherabad respectively. Former place is situate at a distance of 250 miles from Lyallpur and the latter 150 miles. Both of them made a representation to the accused against their transfer but to no purpose.
5. Subsequently, on the 9th January 1973, Rafiq Ahmad Khan Lodhi complainant, resumed his duties after availing one month's leave. At that time, he was working in the United Bank Limited, Dijkot Road Branch, Lyallpur. He was, however, transferred by the accused to Sangla Hill Branch. Two days later, i.e., on 11th January 1973, Rafiq Ahmad Khan Lodhi filed a complaint before the National Industrial Relations Commission (Camp Lyallpur), alleging victimization. On the same day, his statement was recorded and a stay order was granted directing the Management to hold in abeyance the transfer order of the complainant pending the decision of the application. Notice was issued to the accused for appearance and In response thereto, he appeared before the Commission on 7th March 1973, act Lahore. He was accordingly charge---sheeted under section 15 of the Industrial Relations Ordinance, 1969. As he did not plead guilty to the charge, the prosecution evidence was recorded and thereafter the accused produced the defence.
6. Defence case: The case of the accused is that in effecting the transfer of the workers from one Branch to another, he had acted bonofide. He, however, stated that the names of the office-bearers of the Progressive Union had not been notified to him on 10th November 1972,' as claimed by the prosecution. He added that it was on 15th November 1972, that he learnt for the first time about the names of the office-bearers of the Progressive Union. Lastly, be contended that Rafiq Ahmad Khan Lodhi had agreed to his transfer to Sangla Hill and that, therefore, he was posted to that Branch. He produced four witnesses in defence.
7. The only question for determination is whether or not the transfer of Rafiq Ahmad Khan Lodhi (complainant) was by way of victimization. I deliberately refrain from discussing the ease of the transfers qua Muhammad Ashraf and Shaukat Hayat because both of them have filed complaint under section 8-A of - the Industrial Relations Ordinance, -1969. As such, I do not wantto prejudice the case of the either party. Suffise it to say that the statement of Rafiq Ahmad Khan Lodhi to the effectthat he was transferred on 9th January 19731 by way of punishment has been corroborated by the 'depositions of MuhammadHussain, Shaukat All, Muhammad Ashraf and Shaukat Hayat (P.
8. Ws.). All of them have unanimously deposed that Rafiq Ahmad Khan Lodhi is the Vice-President of the Progressive Union, Lyallpur, and that, therefore, he was, transferred to Sangla Hill to put an end to the activities of the Union. They have further deposed that there is another Union known as "United Sank Limited Employees' Union" which is patronised by the Management, including the accused. The defence has not been able to smash their evidence.
9. Shaukat Hayat (P. W. V) and Muhammad Ashraf (P. W. IV) have also alluded to their transfers to distant places, which took place on 13th November 1972. The accused has contested the statementof the prosecution witnesses to the effect that the names were notified as early as 10th November 1972, (Exh. PB/1).The point whether the assertion of the prosecution to the effect that the accused was intimated the names of the office-bearers of the Progressive Union as early as 10 November 1972, and not 20th November 1972, as asserted by the defence,would be relevant as and when the case filed by both the workers referred to above, is taken up by the Commission. Bethat as it may, the accused has admitted in his statement before theCommission that he learnt the names of the office bearers of the Progressive Union on the 15th November 1972. That being the position,he wag aware on 9th January 1973, thatRafiq Ahmad Khan Lodhi was the Vice-President of the Union.The accused has advanced the plea that as there was rush of work at Sangla Hill Branch, he needed a Cashier urgentlyto cope with the work, he directed Raja Muhammad Akbar,Group Incharge (P. W. IV), who was sitting in his room to make the necessary arrangements. He further stated that the latter returned after 10-15 minutes and told him (accused) that Rafiq Ahmad Khan Lodhi was willing to go to Sangla Hill Branch and that on receipt of this information, he passed the transfer order. As against this, Raja Muhammad Akbar, while deposing that Rafiq Ahmad Khan Lodhi had agreed to his transfer, stated that the accused had given him instructions on troth the occasions on telephone and not in his room. Apart from this, no question was put to Rafiq Ahmad Khan Lodhi about his willingness to his posting at Sangla Hill, when ho appeared in the witness-box.
10. The only inevitable conclusion, therefore, is that the version that the complainant had agreed to histh transfer is an afterthought and made-up story. Besides, it is impossible to believe that Rafiq Ahmad Khan Lodhi who bad agreed to his posting at Sangla Hill should within two days resile and file a complaint under section 15 of the industrial Relations Ordinance, 1869. The accused also produced his P. A., Muhammad Siddique Javed (D. W. 1) who deposedthat the letter (Exh. D, A.) was received by him oat 20thNovember 1972, and not on 10th November 1972, as claimed by the prosecution, and that he had signed the peon book (Exh. P. C.) in token of havingreceived it on that day. I have already stated that the question as to the date on which the accused received the intimation of the names of the office-bearers of the Progressive Union, is not relevant for the decision this case.
11. D. W. It is an Assistant Director (Registration), Sargodha Region, Lyallpur, who has deposed about certain letters which mare exchanged between the accused and the Registrar, Trade -Unions.
12. Sargodha Region, Lyallpur. Similarly, Manzur Ahmad (D. W. 111) Is a formal witness who deposed that Shaukat Hayat (P. W. V) and Muhammad Ashraf (P. W. IV) bad filed complaints of unfair labour practice before the Labour Court, Central Zone, Lahore, which were returned to theca on 1st December 1972, with the remarks that these should be filed before the National Industrial Relations Commission.
13. I have already mentioned above that the testimony of the prosecution witnesses has not been shaken by the defence. The defence evidence is stereotyped and as such brushed aside. In short, the prosecution has succeeded in bringing home the guilt of the accused. It is apparent from the perusal of the record that the accused first transferred Shaukat Hayat (P. W. V) and Muhammad Ashraf (P. W. IV) on 13th November 1572, and later, on 9th January 1973, he transferred the complainant Rafiq Ahmad Khan Lodhi. All of them are important office---bearers of their Union.
14. The story that Rafiq Ahmad Khan Lodhi had expressed his willingness is trash. The only inference A therefore, that the accused transferred Rafiq Ahmad Khan Lodhi by way of victimization so as to wreck the Progressive Union.
15. The learned counsel for the defence have acted the following rulings:-
(1) 1962PLC1468, (2) 1963PLC161and (3) 1LLJ591.
16. These are not on all fours with the circumstances of the present case. In the first two cases, Mr. Khurshid Zaman, Chairman of the Industrial Court West Pakistan had arrived at the conclusion that the allegation of victimisation had not been proved In the third case', which to from the Labour Appellate Tribunal or India, the President and the Member who hoard the appeal, dismissed it on the short ground that no specific question of law was involved. All of them, however, reiterated the principle that "the employer has the right to transfer any employee provided the exigencies of service require---. I respect--fully agree with their observations.
17. I may add for the information of all concerned that it the right of the employer to transfer an employee irrespective of the fact that the latter to an office-bearer of the Union and done bona fide and not with ulterior motives of victimization.
18. The accused undoubtedly Is a highly paid officer drawing Rs. 3,000 per month as salary. He has, however, contravened the Provisions of section 15 of the Industrial Relations113 Ordinance, 1969.
19. Such officers, by making arbitrary and unjust orders, create unrest and workers thereby disrupting the peaceful atmosphere. I am confident that if law is followed in letter and spirit, then there would be no labour trouble stall. Considering the gravity of the offence, the accused C is not entitled to any leniency in the matter. I accordingly convict him under section 53 of the Industrial Relations Ordinance, 1969, and sentence him to three years' R. I. together with a fine of Rs. 3,000 (Rs. three thousand only); in default of payment of fine, to further R. I. for six months.