DECISION ' These two appeals are between the same parties. As not only the parties are same but the facts of the two cases are also interconnected. I will therefore dispose of both the appeals by the single decision.
2. Admitted facts of the case are, that the respondent Noor Mohammad Naeem was initially appointed in the Cotton Trading Corporation of Pakistan Limited which was dissolved in 1977 as a result of which the services of the respondent were terminated. On the application of the respondent the appellants employed him as Assistant Manager (Cashier) on purely temporary basis for a period of three months w,e,f, 30-12-1984. His services were extended for further period of three months and were finally terminated on 15-7-1985. The respondent after serving grievance notice challenged the order of termination, which was decided by the learned Labour Court in his favour on 23-11-1986. In pursuance of the order of the learned Labour Court, the appellants reinstated the respondent in service vide order dated 30-11-1986. The appellants also filed appeal against the said order in the Tribunal which was dismissed on 19-3-1987. The appellants however transferred the respondent to Multan to their Multan Store as Assistant Manager Accounts vide their letter dated 5-1-1987. The respondent challenged this order of transfer and served grievance notice upon the appellants on 24-1-1987 and thereafter filed grievance Petition No,12/87 on 14-2- 1987 in the Fifth Sindh Labour Court at Karachi, which was later on transferred to the Sindh Labour Court No,1 at Karachi and it has new number as 172/87. The appellants had ordered the reinstatement of respondent as temporary employee of the appellants. The respondent however claimed to be a permanent employee and therefore he served such grievance notice upon the appellants on 22-3-1987 and filed grievance Petition No,56/87 on 13-5-1987 in the Fifth Sindh Labour Court at Karachi, which was later on transferred to the First Sindh Labour Court at Karachi, it has new number as 171/87. Both the grievance petitions were decided in favour of the respondent on 23-5-1990. Appeal No,KAR-163/90 was filed by the appellants against the Order of the learned Presiding Officer, Sindh Labour Court No,1 at Karachi, holding the respondent to be a permanent employee. Appeal No,KAR-164/90 has been filed by the appellants against the Order passed by the learned Presiding Officer, First Sindh Labour Court at Karachi, holding that the transfer of respondent to be mala fide and therefore allowing his prayer to be taken back on duty at Karachi.
3. I have heard Mr. M. Riffat Usmani, learned Advocate for the appellants and Mr. S.P. Lodhi, learned Representative for the respondent and have also gone through the record and proceedings of the case.
4. In the previous petition filed by the respondent his status as to whether he was permanent workman was not decided, but the order of his termination was set aside mainly on the ground, that it did not comply with the provisions of Standing Order 12(3) of the Standing Order Ordinance, 1968 as the reason for termination of service was not shown. On the reinstatement, he was also allowed back benefits. As such he would be deemed to be in continuous service from the date of his first appointment viz. 30-12-1984 till he served the grievance notice on 22-3-1987.
5.It is settled law, that it is not the period of service which decides the status of workman as to whether he is a permanent workman or temporary workman, but it is mainly the nature of his work.
In this context it may be pertinent to reproduce the provisions of Standing Order 1 (b) and (c) which reads as under:-- "Standing Order 1.
(b) A 'permanent workman' is a workman who has been engaged on work of permanent nature likely to last more than nine months and has satisfactorily completed a probationary period of three months in the same or another occupation in the industrial or commercial establishment..
(c) A 'temporary workman' is a workman who has been engaged for work which is an essentially temporary nature likely to be finished within a period not exceeding nine months."
' Even from the bare reading of these provisions it would be clear, that it is the nature of work, which has to be considered while deciding the status of the respondent.
6. The appointment order no doubt shows that respondent was appointed on temporary basis for three months and he has admitted in his cross-examination that his appointment was extended for further three months. However, he alleged in his grievance petition, that 13 other persons in the same category as the respondent, were appointed after his appointment but their services still continued. This averment of the respondent has not been rebutted. There is also no evidence to show that post against which he was working was ever abolished at any time. Mr. M. Riffat Usmani has contended, that workload increased in the appellant establishment during the cotton season, when more employees were required and the work decreased after the season and therefore extra workers were removed from their services. However as appointed above, therein is no evidence to show that the post against which the respondent was working, was abolished due to reduction of work. Even in the termination order of the respondent dated 15-7-1985 reason of his termination does not show that the post against which he was working had been abolished. There is also no evidence to show that even during the period the respondent was out of service, this post had been abolished. The fact that 13 other persons, appointed after the appointment of the respondent, still continued to work, is a clear proof that the work that the respondent was doing not of a temporary nature, but it was of a permanent nature requiring employment of more persons. As such in my opinion the learned Labour Court has rightly held that the respondent to be a permanent workman. The Appeal No,KAR-163/90 filed by the appellants therefore rejected.
7. The petition of the respondent against the order of transfer was resisted by the appellants mainly on the ground, that the respondent did not have any right guaranteed under any law, settlement or any award with regard to his posting, which he could enforce through the Labour Court under section 25-A of the I.R.O.
1969. Section 25-A of the IRO, 1969 provides that worker may take his grievance to the Labour Court in respect of any right, guaranteed or secured to him by or under any law or any award or settlement for the time being in force. Mr. S.P. Lodhi, learned Representative for the respondent could not cite any settlement or award under which respondent had right to be posted at Karachi or at any particular place. Even the learned Labour Court, in the impugned order, has not cited any such law, settlement right or award. The learned Labour Court has however held the order of transfer as mala fide on the ground, that it was passed with intention to make it difficult for respondent to pursue the appeal filed by the appellants against the respondent impugning the order dated 23-11-1986 and further more because the respondent by that time had not been paid the back benefits, therefore, he would be put in great difficulties by taking his family to Multan. He has also held the order to be mala fide as persons junior to the respondent were working at Karachi. Under section 15(1)(d) of the I.R.O., 1969 the transfer is held to he unfair labour practice if the transfer is for reason that the workman is or proposes to become or seeks to persuade any other person to become, a member or officer of trade union, or participates in the promotion, formation or activities of a trade union. Even these conditions are not pleaded by the respondent.
As such this transfer cannot be considered even unfair labour practice.
8. The question of mala fides assumes importance only in case when by mala tide order, the employer takes away any right of the workman which is secured by the law, award or settlement.
Mere transfer simpliciter would not give powers to the Labour Court to entertain an application under section 25-A of the I.R.O., 1969 against his transfer. It is contended by appellants that under the letter of appointment, by virtue of condition No,XII, the respondent was liable to be transferred anywhere in Pakistan. The respondent has however contended that this appointment order does not bear his signature to signify his having accepted this condition, therefore the conditions mentioned in the letter of appointment are not binding upon him. The letter of appointment is issued by the appellants in due course of business as required under Standing Order 2A. It would be presumed to be correct unless otherwise proved. No other letter of appointment has been produced by the respondent to show, that he was appointed on the conditions other than mentioned in the letter of appointment Exbt. AW-1/5 produced by the appellants through the respondent. After all the respondent could not have joined the service without letter of appointment. Non-production of letter of appointment would also raise presumption against the respondent.
9. Even if for the sake of argument, it is held, that this letter of appointment was not served upon the respondent, it would still not confer any right upon respondent to be posted at Karachi and not anywhere else. It is not alleged, that by transfer, the emoluments or grade of respondent has been reduced. Transfer or posting has never been held to be vested right of an employee. In the case of Mumtaz Hussain v. Superintending Engineer, Desert Pat-Feeder Circle, Sukkur and another, reported in 1980 PLC 498, this Tribunal has held that no employee can validly object to transfer, as transfer is exigency of service. In the case of Messrs M.F. Sons Food Industries v. Amal Mian, reported in 1980 PLC 865, this Tribunal has held that transfer was right of employer. In the case of Mohammad Sultan Ahmad v. National Bank of Pakistan, Karachi, reported in 1979 PLC 492, this Tribunal again held that transfer is normal exigency of service and cannot be considered as a punishment. In view of these consistent decisions of this Tribunal, I find no reason to hold otherwise. The transfer of an employee to equivalent post with F same emoluments, does not give any cause of action to the employee to bring his such grievance to the Labour Court under section 25-A of the I.R.O.
1969. The petition itself was not maintainable. As such the Appeal No, KAR-164/90 is allowed and the order of the learned Labour Court is set aside.