' Petitioner, employed as Traffic Assistant in PIA has filed a petition under section 22-A(8)(g) of I.R.O.
To challenge the order, dated 14-6-2000 passed by the respondents whereby he has been transferred from Lahore to Dera Ismail Khan. Alongwith the main petition he has also filed an application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 seeking the suspension of the impugned transfer order and for maintenance of status quo during the pendency of the main petition. This application is being disposed of by this order.
2. Case of the petitioner as set out in his petition is that he was employed as Traffic Assistant in Pakistan International Airlines (PIA) in April, 1996 and ever since his appointment, he has been an active member of the CBA Union (Air League) in the capacity of Joint Secretary, Traffic and has been participating in trade union activities. It is further stated that being an active office-bearer of the CBA Union, petitioner was quite often "involved in negotiations on behalf of his fellow union members with the Management" for which reason, the management was not very happy with him.
It has also been alleged by the petitioner that the CBA Union of which he is the office-bearer was supporter of Pakistan Muslim League and "ever since the Muslim League Government was thrown by the present Military Regime, there has been witnessed a tendency on the part of the respondent authority as well as its management to victimise the office-bearers of the petitioner union and to discriminate against them'. Proceedings on these premises, the petitioner claims that his transfer from Lahore to the far-flung area of Dera Ismail Khan is mala fide, based on extraneous considerations and result of political victimization. It has been further alleged in the petition that other Traffic Assistants who have been posted in Lahore for the last 10 years have not been transferred. He has named four Trafic Assistants in Ground-A of his petition who, it is alleged, have been serving at Lahore Airport for past 10 years but have never been transferred as "they do not belong to the Air League". According to the petitioner, all those who have been transferred are office-bearers and members of the Air League. Grievance made by the petitioner is that he has been transferred to Dera Ismail Khan to deprive him of his trade union activities as there are no union activities in Dera Ismail Khan. His further grievance is that the impugned transfer order was passed while he was on sick leave duly allowed up to 21-6-2000 and he came to know of it through a new report published in "Daily Pakistan" of 20-6-2000 and that he was not given either a transfer letter, dated 14-6-2000 or the release letter, dated 15-6-2000.
3. This petition was placed before me on 21-6-2000 when after hearing the learned counsel for the petitioner, copy of the petition was ordered to be sent to respondents Nos.2 and 4 for their comments with further direction that respondent No,4 shall depute a responsible officer fully conversant with the facts of the case to appear with record on the next date of hearing and till then, status quo was ordered to be maintained. The respondents filed their reply in the main petition as also in the stay application on 3-7-2000 and the petitioner submitted rejoinder thereto on 7-7-2000. The case was thereafter adjourned for arguments in the stay matter. Arguments were partly heard on 17-7-2000 when both the learned counsel sought further adjournment to study the case-law. The case was accordingly adjourned to 19-7-2000 on which date, it could not be heard and was adjourned to 31-7-2000. On the last-mentioned date, the case was again adjourned for today at the request of the counsel for the respondents.
4. I have heard the learned counsel for the parties. Learned counsel for the petitioner has reiterated the petitioner's stand taken in his petition namely that he is an active Member of the CBA Union and also its office-bearer. It is stated that the petitioner is the Joint Secretary of the Air League/CBA to which post he was nominated by the President of the union vide order, dated 1-10-1999 issued by Rana Mudassar, General Secretary of the Union and before that, he was nominated as Councillor of the Air-League in the year 1997. Learned counsel has contended that the petitioner has been participating in the negotiations with the management on behalf of his fellow-members with which the management was not quite happy. He has, therefore, been transferred from Lahore so as to prevent him from taking part in the trade union activities which act constitutes an unfair labour practice. Learned counsel has vehemently contended that in the facts and circumstances of the case submitted in detail in the petition, the transfer of the petitioner from Lahore to Dera Ismail Khan is not a transfer in routine or in the exigency of service but intended to punish him for being an active member and office-bearer of the Air League and it is also an act of discrimination against the petitioner as other Traffic Assistants who have been posted in Lahore for the last many years have not been transferred. Learned counsel has argued that the transfer of the petitioner is an act of unfair labour practice which has not yet been committed as the impugned transfer order has not been given effect to so far and, therefore, the petitioner is entitled to the grant of interim relief in terms of Regulation 32(2)(c) so as to prevent the occurrence of unfair labour practice. In the submission of the learned counsel, if the interim relief is not granted to the petitioner and status quo order not confirmed, the impugned transfer order would be implemented resulting in the commission of unfair labour practice. Learned counsel has referred to a case reported in 1996 PLC 10 which shows that a Member of this Commission confirmed an interim injunction earlier granted by him against the transfer of an employee who claimed that he was elected as Assistant General Secretary of the union and his transfer was the result of his trade union activities. It may pertinently be observed that the learned Member who decided the afore-referred case brushed aside as not relevant an appellate judgment of this Commission reported in 1987 PLC 358 wherein it was held that transfer of a trade union official, per se, would not constitute unfair labour practice under section 15 of I.R.O.
' Learned counsel for the petitioner relying upon two judgments of the Supreme Court of Pakistan sought to argue in the alternative that even when the power to suspend the operation of an impugned order is not expressly conferred by a statute, the power to grant interim relief by suspending wholly or partially, the operation of the order impugned is reasonably incidental or ancillary to the jurisdiction to grant relief in the main case. Learned counsel has also referred to a judgment of Lahore High Court in the case of "Leaver Brothers of Pakistan Limited v. Senior Member, National Industrial Relations Commission, Islamabad and another" (1984 PLC 115) wherein it was held that an interim order granting interim relief can be passed even if the law does not so provide, provided such an interim order is incidental or ancillary to the proceedings and the circumstances of the case eminently justify it. Precise argument of the learned counsel is that even if the provisions of Regulation 32(2) are assumed to be not attracted, the interim relief sought by the petitioner being incidental to the process of adjudication involved in this case could competently be granted by this Commission.
5. Learned counsel for the respondents has contended that NIRC is a forum of limited jurisdiction which deals with the cases of workmen based on the allegations of unfair labour practice and its functioning is regulated by N.I.R.C. (Procedure and Functions) Regulations, 1973. Submission of the learned counsel is that the impugned transfer order has been passed in the exigency of service and not because of the so-called trade union activities of the petitioner and as such, the case of the petitioner does not fall within the ambit of the provisions invoked by him as to attract the jurisdiction of this Commission as it is not a case -of unfair labour practice. It is further contended by the learned counsel that the order having already been passed which the petitioner has assailed before this Commission, its operation could not be suspended as on the petitioner's own showing, unfair labour practice, if any, had already occurred. In support of his submission learned counsel has placed reliance on an unreported judgment of the Lahore High Court, dated 4-3-1996 passed in Writ Petition No,8860 of 1995 wherein, following Divisional Bench Judgment of Karachi High Court in the case of Allied Bank of Pakistan and 3 others v. Chairman, N.I.R.C. And 4 others (1984 PLC 1342), it has been held that the order of transfer having already been issued, its operation cannot be suspended "without a positive finding that his order was the result of unfair labour practice. " Learned counsel for the respondents has also relied upon the case reported as 1994 PLC 280 and submitted that in the absence of details of specific allegations of unfair labour practice, jurisdiction of NIRC was not attracted. Learned counsel vehemently contended that it has not been shown by the petitioner as to what kind of trade union activities were going on at Lahore at the relevant time in which he was participating and the impugned transfer order has been passed to prevent him from participating in those activities. Learned counsel has submitted that neither any referendum is in the offing for purpose of determining the CBA nor is it the case of the petitioner that the elections of Air League were going to be held. Learned counsel for the respondents has repelled the contention of the petitioner that his transfer was motivated by his trade union activities. His submission is that the impugned transfer order was passed to meet the administrative requirements of the respondent - Corporation and it has nothing to do with the so- called trade union activities of the petitioner. According to the learned counsel, petitioner has not been performing his duties efficiently and honestly. It has been pointed out by the learned counsel that during four years' period of his service, the petitioner has been involved in numerous acts of corruption and misconduct and his transfer has thus become imperative for smooth running of the respondent-Corporation and to rehabilitate its image. Learned counsel has drawn my attention to para. 1 of the reply filed on behalf of the respondents wherein details of the show-cause notices issued, punishments awarded and the warnings administered to the petitioner from time to time have been given as follows:--
(i) Petitioner was issued show-cause notice on 15-2-1999 on the charge of illegally receiving an amount of Rs,960 from a passenger travelling from Lahore to Karachi; and
(ii) was awarded punishment of fine on 14-7-1999 for the aforesaid misconduct.
(iii) He was issued another show-cause notice on 26-3-1999 for having received illegal gratification of Rs,23,000 from a passenger for upgrading him from Economy to Business Plus Class on the Sector Lahore New York which amount he did not deposit with the PIA; and
(iv) he was issued a letter of advice, dated 13-3-2000 in respect of the misconduct forming the basis of the abovementioned show-cause notice, dated 26-3-1999.
(v) He was issued a letter of caution on 31-8-1999 on account of mishandling two passengers travelling on Lahore-Multan Sector by PK387 on 15-1-1999.
(vi) He was also found involved in various Security violations and it was alleged that he had links with some passengers who travelled abroad and bring liquor for him. In this connection, letters, dated 31-3-2000 and 13-4-2000 were issued by Chief Security Officer, Lahore Airport Security Force, to Security Manager, PIA.
(vii) He was also issued show-cause notice, dated 9-6-2000 on account of charging an amount of Rs,17,800 from a passenger in respect of excess baggage out of which he deposited only Rs,14,000 with the PIA and misappropriated Rs,3,800. This case is stated to be still pending and is being inquired into.
6. Learned counsel for the respondents has pointed out that the aforementioned acts of misconduct/corruption highlighted in the respondents' reply have not been specifically denied by the petitioner in his rejoinder and he has rather admitted the same by stating that the details of the allegations referred to above are "totally irrelevant and have no nexus with the petitioner's transfer order". Learned counsel for the petitioner has sought to explain that the cases of misconduct referred to in the reply of the respondents are irrelevant for, the reason that the proceedings initiated against the petitioner have already culminated in some orders except one case mentioned in para. 1(g) of the reply. He has made a grievance with reference to ground (d) of the petitioner's rejoinder that the incident (presumably the charge which is being inquired into) which took place seven months back has been reopened with a view to punish the petitioner. Be that as it may, the fact remains that the instances of misconduct/corruption of the petitioner quoted by the respondents in their reply have not been denied as such by the petitioner. Learned counsel for the respondents has argued that in view of afore-noted misconduct of the petitioners, he cannot be heard to make a grievance that his transfer is an act of unfair labour practice. Learned counsel has referred to case reported as 1986 PLC 365 wherein the transfer of an office-bearer of a trade union impugned therein was held to be justified as there were allegations of corruption against him.
7. I have given my anxious consideration to the submission made by the learned counsel for the parties. Law by now is fairly well-settled that before granting interim relief, the Court or the Tribunal must satisfy itself whether there exists any prima facie case in favour of the person seeking the interim relief, and it must also examine the concepts of convenience/inconvenience of the parties and irreparable loss likely to be suffered by the petitioner in case of refusal to grant the interim relief. In a case like the present one which is based on the allegations of unfair labour practice, it has to be seen whether the allegations made by the petitioner coupled with other material available on the record, prima facie, disclose the commission of any unfair labour practice on the part of the employer because on such a finding depends the exercise of jurisdiction of this Commission.
' On perusal of the record, I find that the case of the petitioner rests on bald allegation that his transfer is the result of the trade union activities which he allegedly performed as an office-bearer of the CBA Union. No details whatsoever have been given of any trade union activities carried on by the petitioner. The petitioner has simply alleged that he was an active Member/Joint Secretary of the CBA Union and being an active office-bearer of the union, he was quite often involved in the negotiations with the Management on behalf of his fellow union members. It may, pertinently be observed that he has not given any details of such negotiations nor has he disclosed the nature and level of the negotiations, that is to say nothing has been brought on record to show in respect of which dispute/demands, the negotiations were held and when and where the negotiations took place and with what result. He has not cared to place on record any material such as copy of the minutes of any meeting held for negotiations in which he allegedly participated. In the absence of these relevant details, the version of the petitioner that he was an active trade unionist or that he participated in the negotiations with the management cannot be readily accepted. Assuming, however, that the petitioner was involved in any negotiations with the management as contended by him, this could hardly be a reason for transferring him. The plea of the petitioner that his transfer has been ordered because he used to take part in the negotiations with the management on A behalf of his fellow union Members does not prima facie, appeal to reason. Petitioner is not shown to have indulged in any such activities which could possibly have annoyed/offended the management so much that they would transfer him as a measure of punishment. Similarly, there does not appear to be much substance in the allegation of the petitioner that the impugned transfer was intended to prevent him from performing his trade union activities as it has not been shown nor even alleged that any referendum was in the offing for the purpose of determining the CBA' in the establishment of PIA or the elections of the petitioner's union are scheduled to be held in the near future. Even otherwise, on the petitioner's own showing, he is only a nominated Joint Secretary, Traffic Wing and it is not his case that any of the principal office-bearers of the union like President and General Secretary have been transferred from Lahore. It may be noted at this stage that the respondents have referred to numerous acts of corruption/misconduct on the part of the petitioner which he has not specifically denied and it has been contended by the learned counsel for the respondents that in view of these acts of misconduct, transfer of the petitioner has become imperative for smooth and clean functioning of the respondent-Corporation and to rehabilitate its image. It is true that in the impugned order of transfer, the misconduct/corruption of petitioner has not been indicated as the reason .For his transfer but possibility cannot altogether be ruled out that this may have been the cause of his transfer.
8. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I am not quite satisfied for the present that there exists any prima facie case of the commission of unfair labour practice in favour of the petitioner as it cannot be said on the present record and the attending circumstances that the impugned transfer of the petitioner was motivated only by his trade union activities, or that it was intended to prevent him from performing his trade union activities at Lahore, particularly when it has not even been alleged in the petition that any referendum for CBA or the elections of the petitioner's union are scheduled to be held in near future or that any charter of demands has been submitted by the CBA Union in which the negotiations are in progress wherein the petitioner was participating or his participation is absolutely necessary. For all these reasons I am of the view that there does not exist prima facie case of commission of any unfair labour practice.
' Balance of convenience also does not seem to lie in favour of the petitioner in so far as it is the term and condition of his employment that he can be posted anywhere in Pakistan, and it is also an accepted proposition that it is the inherent right of the employer to transfer his employee from one place to another keeping in view his own administrative requirements. Ordinarily, an employee cannot make legitimate grievance against his transfer. Needless to observe that merely because the petitioner happens to be an office-bearer of the CBA Union does not mean that he cannot be transferred from one station to the other particularly when he has remained posted in Lahore ever since his appointment in the year 1996. Law is not fairly well-settled that the transfer of an office- bearer of a union per se does not constitute unfair labour practice. In order to show that his transfer is an act of unfair labour practice, the petitioner should have placed on record some material in support of his contention which he has failed to do. It can also not be reasonably contended that the petitioner will suffer any irreparable loss and injury if the interim relief sought by him is not granted and the impugned transfer order is implemented. On the contrary, if the operation of the impugned transfer order is suspended, it will hamper and prejudice the administrative functioning of the respondents as they will have to retain the petitioner at Lahore against their will.
8. Having held that none of the necessary ingredients/legal requirements governing the grant of interim relief exists in the present case, it is not necessary to go into other questions raised by the learned counsel for the parties.
' Upshot of the above discussion is that the petitioner having failed to make out any prima facie case of unfair labour practice and other necessary ingredients of balance of convenience/inconvenience and likelihood of irreparable loss also not being in his favour, I find no merit in this application for the grant of interim relief which is hereby dismissed and the interim order issued on 21-6-2000 is recalled.
' Main petition shall come up for further proceedings on a date to be fixed by the office.