1. Inayat Ali petitioner, Accounts Clerk, office of the District Manager, PAD&SC, Faisalabad, feeling aggrieved by his transfer order, dated 7-7-1993 (Annexure "G") of Regional Manager, PAD&SC, Faisalabad, respondent, has challenged the same by way of filing petition under section 22-A (8)
(g) of the IRO, 1969, alongwith an application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973, asserting that the respondent had no justification to order the transfer in question and that the petitioner had been subjected to victimization on account of his union activities as Vice- President of PAD&SC Employees Union (CBA).
2. The respondent in his comments dated 10-11-1993, refuted the allegations of the petitioner, challenged jurisdiction of the. Commission and claimed to have ordered transfer of the petitioner in good faith and "in the best interest of the Corporation".
3. Appearing on behalf of the petitioner, Ch. M. Ikram Zahid Advocate, attempted to argue that this was not a simple case of normal transfer from Faisalabad to Tandlianwala but the transfer of the petitioner has to be viewed in the background of the surrounding circumstances. The learned counsel contended that the transfer was made mala fide and in total disregard of transfer policy (Annexure "J") dated 3-8-1992 with no other purpose but to prevent the petitioner to peruse his union activities. It was also submitted that the respondent on 5-7-1993 at 9-00 a.m. Had summoned the petitioner in his office in order to prevail upon the petitioner and persuade him to abandon his union activities and refrain from supporting the Anwar Group and that when the petitioner refused to abide by the wishes of the respondent, he was unnecessarily transferred without completing the minimum stay of three years at Faisalabad. The learned counsel also accused the rival group for having joined hands with the respondent in procuring transfer of the petitioner. Lastly it was submitted that the transfer of the petitioner was made with special intention to pressurise the petitioner to leave the union and to let the people of management elected as office-bearers. As against this, Malik Abdul Hamid Awan, Advocate, learned counsel for the respondent supported the transfer of the petitioner and assailed jurisdiction of the Commission stating that the petitioner having failed to establish a prima facie case of -unfair labour practice, was not entitled for any relief and that the transfer having been made in the best interest of the Corporation, could not be successfully challenged.
4. In the instant case, the petitioner has been transferred from the office of the District Manager, PAD&SC, Faisalabad to the office of Manager PAD&SC, Tandlianwala, which is hardly at a distance of about 30 k.m. From Faisalabad. It is true that the transfer has been ordered before the expiry of three years, but it is equally true that the transfer has been made to fill an existing vacancy and it has been made in the best interest of the Corporation. The transfer does not offend the Transfer Policy (Annexure "J") which clearly empowers the Corporation to order transfer of its employees even before the completion of three years, for Administrative requirements The mere fact the petitioner has been disllodged from Faisalabad, per se is no instance of unfair labour practice: It has been strongly urged on behalf of the petitioner that section 15 of the Ordinance puts a complete embargo on the transfer of office---bearers during their term of office and as such transfer would amount to unfair labour practice. Reliance is placed on 1980 PLC 498 and 865. It may be pointed out that clause (d) of section 15, IRO, does not place a complete bar on the transfer of office-bearers of a union. The bar in the said clause reads as follows: -- "15(d) "dismiss--- discharge, remove from employment or threaten to dismiss, discharge or remove from employment (or transfer) a workman or injure or threaten to injure 'him in respect of his employment by reason that the workman-- (i)is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union, or (ii)participates in the promotion, formation or activities of a trade union."
5. A perusal of the above clause will show that the transfers even of a workman leave alone that of an office-bearer is prohibited if it is done with any of the intentions or the purposes referred to in the above clause. In this case, it is not shown that the transfer was done with any such intention or for any such purpose. It would appear that the petitioner was transferred in order to fill up an existing vacancy at Tandlianawala. It is not denied that transfer is an unfettered right of the employer.
6. Transfers made in good faith and in the interest of the authority cannot be challenged successfully.
7. It is now well--settled that transferring even the principal Office-Bearers of a Trade Union, does not lead to any presumption of unfair labour practice, because it is for the employer to see as to who fits in where, and transfer being natural consequence of service and one of the conditions of service, by itself does not amount to an unfair labour practice. The management has the inherent right to order transfer in the exigency of service. Transfer of any member of the union does not essentially involve violation of the provisions of section 15(1)(d) of IRO 1969, Law does not give unrestricted licence to the office-bearer/member of a union that they cannot be transferred from one place to another. If Courts start interfering in transfer matters without cogent reasons, it would hamper smooth working of the Departments and would render the employer helpless. The following observations were made by the Commission in Arshad Mehmood v. Factory Manager, Gulshan Carpet Industries, (Pvt.) Ltd., Lahore 1994PLC31: -- "The Management has inherent right to transfer its employees for smooth running of its business and it cannot be challenged. Transfer is the prerogative of the employer. It is always ordered in the best interest of the establishment. The posting of an employee from one place of posting to another in the same establishment is the right of every management and does not constitute unfair labour practice. If an employee is aggrieved by his transfer he can only go to the appropriate forum for redress and not through a petition under section 22-A (8)(g) of the IRO, 1969."
8. It was vehemently contended that in order to oblige the rival union, the petitioner was summoned in the office of the respondent on 5-7-1993 at 9-00 a.m. With the direction to disassociate himself from the Anwar Group and join the group of the management liking. The respondent was stated to have got annoyed with the petitioner on account of his refusal to accede to the request of the respondent. The transfer was stated to be in consequence of that refusal. The submission has not impressed me. While deciding such like matters, the Courts have also to see whether an allegation is probable in ordinary course of natural events in accordance with human conduct. Looking at the allegation from angle, I feel inclined to observe that the allegation has been levelled without any valid basis and the respondent had no occasion to call the petitioner in his office with the direction either to leave the union activities or face the punitive action. 1980 LLC 49.
9. The petitioner is stated to have approached this forum after having remained unsuccessful before the Labour Court concerned to obtain stay. The application of the petitioner moved in this connection before the learned Presiding Officer, Punjab Labour Court No.4, Faisalabad has already been rejected by order, dated 19-7-1993. The factum of the pendency of the petitioner's case before the said Court has been concealed from the Commission. The petitioner has approached the Commission with unclean hands. He is not entitled for any discretionary relief. Injunction is refused to a person who comes to Court with mala fide intention and acts in an unfair or inequitable manner. PLC 1968 Kar. 840, PLD 1970 BJ 50 and 1987 M LD 657 and 1987 M LD 1959.
10. Adverting to the question of jurisdiction, it needs no emphasis that this Commission's jurisdiction under clause (g) of subsection (8) of section 22-A of the IRO, 1969 is attracted only when a case of unfair labour practice is made out. According to law, this Commission has jurisdiction to interfere only if a case falls within the scope of section 15 of the Ordinance. This provision of law provides redress of grievances arising out of victimization for trade union activities only. No other victimization, even if proved, is actionable by this Commission in exercise of jurisdiction created by section 22-- A (8)(g) of the IRO, 1969. The transfer, as stated above, has no link with trade union activities of the petitioner and the plea of unfair labour practice seems to have been taken with a view to attract jurisdiction of the Commission and avoid transfer. The allegations contained in the petition even if they are permitted to stand do not make a prima facie case of unfair labour practice. The existence of unfair labour practice is prerequisite for proceeding with a case under clause (g) of subsection (8) of section 22-A of IRO, 1969. This jurisdictional prerequisite is missing in the instant case: The petitioner has failed to make out a prima facie case of unfair labour practice.
11. The petition fails which is hereby dismissed. Stay recalled.