By means of an application under section 25-A of the industrial Relations Ordinance, 1969, the petitioner, who is employed as a Typist/Senior clerk in the Sahiwal office of the Punjab Agricultural Development & Supplies Corporation, has challenged the order of his transfer from Sahiwal to Tehsil Lodhran District Multan, directed by the Regional Manager, Punjab Agricultural Development & Supplies Corporation, Multan on 23-7-1985 and has also claimed the arrears of salary as well as travelling allowance.
2. The petitioner's contention is that his transfer is against facts and law. He being a low paid employee cannot be transferred from the present place of his posting. Further, he has not been paid his salary from 13-10-1985 to 31-10-1985 amounting to Rs,549 and TA. bill on his transfer, coming to Rs,931 unjustifiably. In the given situation, the order of his transfer should be set aside with a direction to the respondents to make payment of his dues detailed above to him accordingly. The petitioner further prayed that he has been victimized for his appeal pending in this Court in connection with his claim under Payment of Wages Act, 1936. The respondents may also he punished for that
3. In their written reply, submitted jointly, the respondents affirmed the legality of the petitioner's transfer from Sahiwal to Lodhran. According to them, transfer of his employee is the prerogative of an employer hence it cannot be challenged in the Courts. So far as the dues are concerned, the respondents contended that the petitioner may collect the same at any time.
4. To settle the controversy, I invited necessary evidence from the parties. After evidence, I gave them full chance to argue their case before me. The learned counsel for the respondents submitted his arguments in writing while the petitioner contended himself with his oral averments.
Keeping in view the facts and law, I proceed to record my findings.
5. The petitioner's contention is that he is a low-paid employee therefore he cannot be transferred from Sahiwal. In support of his contention, the petitioner has tendered in his evidence a copy of letter No,PAD&SC/SW-SS-9/5813/82/7425-7506, issued from the office of Punjab Agricultural Development & Supplies Corporation, Lahore on 3-8-1982 to all its subordinate offices as Exh. P.11. It says that officials in scale below 7 should invariably be posted in their home tehsils since they are low paid employees. If at all such low-paid employees are to be transferred, they should be transferred from one desk to the other in the same office or in an office at the same station.
6. In rebuttal, the respondents have tendered only three documents. All the three documents fail to support the respondents. Exh. R.2 is a copy of Exh. P.11 which I have already discussed. Exh. R.3 is a copy of letter No,PAD&SC/ Sales/FD-Admn/5707/80/7528-7634, dated 3-7-1980 issued from the office of Punjab Agricultural Development & Supplies Corporation, Lahore, to its subordinate offices.
It says that no employee of petitioner's status should be kept at a particular station beyond three years. Exh.R.1 shows period of petitioner's posting at Sahiwal. Exh. R.3 is previous to Exh. P.11 therefore, it is to be considered over-ridden by Exh.P.11. In other words, it is Exh.P.11 which is prevailing policy at present, as such Exh.R.3 does not apply. It is, therefore, not necessary to consider the period of petitioner's posting at Sahiwal in the light of Exh.R.1.
7. The respondents have looked upon their right of transfer as their unfettered prerogative.
According to them, transfer of their subordinates according to administrative convenience is their sole domain hence the Court has no locus standi to intervene. In support of their contention, the respondents, through their learned counsel, have relied upon the following decisions of the superior Tribunals.
M/s. M.F., Sons Food Industries v. Amil Mian, decided by worthy Labour Appellate Tribunal, Sind, vide 1980 PLC 865.
Mumtaz Hussain v. Superintending Engineer, Desert-Pat-Feeders Circle Sukkur and another, decided by worthy Labour Appellate Tribunal, Sind, reported in 1980 PLC 498.
Hussain and others v. Progressive Rubber Products Limited, decided by worthy Labour Appellate Tribunal Sind, reproduced in 1980 PLC 940.
Pakistan Agricultural Storage & Services Corporation Limited, Larkana and others v. Irshad Ali, decided by worthy Labour Appellate Tribunal, Sind and cited as 1982 PLC 142.
P.I.D.C. Larkana Sugar Mills and another v. Employees Union and another, decided by worthy Labour Appellate Tribunal, Sind, vide 1982 PLC 779.
Muhammad Afzal Bhatti, v. Cooperative Insurance Society of Pakistan Limited, cited as 1984 PLC 1106 and decided by worthy Labour Appellate Tribunal, Punjab. With utmost regard and respect for the observations of worthy Tribunals, laid down in the above judgments, my humble opinion is that none of them is applicable to this case. The first case cited as 1980 PLC 865, pertains to transfer a legedly having been made on account of unfair labour practice. In that case, the petitioner's contention was that he was to take part in the referendum. To deny him the opportunity of success in the same, the management passed the order of his transfer. He accordingly prayed for injunction against his transfer order which was given to him by the learned Labour Court. The worthy Tribunal, in revision, affirmed the legality of the transfer maintaining that date for referendum had not been fixed. The transfer in accordance with terms and conditions of service was quite within the jurisdiction of the management.
8. The next is the judgment referred to as 1980 PLC 498. In that case, the petitioner challenged his transfer on the ground that he was acting as Charge Mechanic whereas the post on the next station was not sanctioned. He had been denied his increment and his three T.A. bills had not been paid. The worthy Labour Appellate Tribunal, Sind, in the context of these facts held that transfer is an exigency of service. So far as the contentions, raised by the petitioner were concerned, did not hold true. For having not been able to prove them, the petitioner had no case.
9. Thirdly is the judgment titled Hussain and others v. Progressive Rubber Products Limited, reported as 1980 PLC 940. This case was of shifting of place of establishment. The workers refused to work at the new place thus resulting ultimately in their dismissal from service on the charge of absence.
The worthy Tribunal, in the given situation, accepted the plea of the management on the ground that it is prerogative of the management to shift the place of working of the department or industry. The workers had no choice in the matter. The establishment had already been working at the new place. Moreover there was no proof of victimization.
10. 1982 PLC 142 relates to a case of a worker who challenged his transfer as mala fide. According to him, he complained against one of the officers of the establishment therefore, was victimized in the said manner. The worthy Appellate Tribunal did not agree with his view point. It held that the petitioner had failed to prove his version. The record established that the petitioner was transferred with seven other employees of the company. He, for that matter, could not call it an unaccommodative attitude of the management.
11. The judgment reproduced as 1982 PLC 779 relates to a case of transfer of workers from an establishment at Larkana to that at Shehdad Kot. While assessing the validity of the transfer, the worthy Appellate Tribunal observed that transfer on account of exigency of service is a right of the employer. The employer can transfer his employees if not prohibited by law, or not by mala fide intention.
12. In the judgment cited as 1984 PLC 1106, the petitioner was transferred to Karachi to cope with the additional duties. The petitioner failed to abide by that order. He was consequently proceeded against resulting in his dismissal from service. During the proceedings, a question arose whether the transfer of the petitioner was valid or was victimization on account of his trade union activities.
The worthy Appellate Tribunal did not agree with the petitioner's contention and held that transfer can be ordered if not prohibited by terms and conditions of service.
13. As is apparent from the facts of the judgments, referred to above, the petitioner's case is different from them. Here the proposition is quite clear. In accordance with Exh. P.11, the department itself says that certain categories of its employees should not be transferred in the disputed manner. The respondents in the presence of law, cannot take recourse to the privilege or prerogative. They are to abide by the express law at every cost. Most of the judgments, stated above rather support the petitioner's contention by laying down that the management cannot overlook the law pertaining to transfer, if there arises any question connected therewith.
14. The petitioner has also claimed certain dues. The validity of his claim to this extent has not been questioned by the respondents in their written statement, therefore, I need not enter into discussion on this front.
15. For what has been discussed above, the petitioner has proved his case for setting aside the order of his transfer as well as for the recovery of his dues. Accordingly, his application for the said relief is accepted as prayed for.
16. To award punishment to the respondents, the petitioner has not been able to make out his case as such his request to this extent is disallowed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.