' Essential facts are that the petitioner was employed in respondents Establishment on 24-3-1969, as helper in repair shop of Pakistan Railways which is included in Pakistan Railways Workshop Establishments. The petitioner is an active member of Railways Workers' Union (C.B.A.) since 1976.
Petitioner was promoted on 19-1-1978 as Semi-skilled moulder in BPS-4, then skilled moulder in BPS-6 on 20-8-1984, then as Mistry in BPS-9 in the month of December, 2001. The employees of every workshop in the Pakistan Railways Workshop Establishment has their own separate seniority of each category up to the post of Mistry.
2. Nature of work of the petitioner is as such that he falls within the definition of a workman.
Petitioner is active member of Railways Workers' Union. He was elected Member of General Council of Railways Workers' Union in the elections held on 13-1-1999 under the Supervision of RITU of this Commission. Previously petitioner was General. Secretary. He contested for the post of President, but he could not succeed due to coercive measures adopted by the respondents. The petitioner has also filed the appeal against the said elections before the Full Bench- of this Commission which is pending. The respondents also filed six separate petitions under section 16 of the I.R.O., before this Commission against all the six trade unions which were disposed of on 22-6-2000. Two days after passing the said order respondent No,1 at the instance of respondent No,2 only to victimize the petitioner on account of his lawful trade union activities, he was transferred not only from one establishment to another establishment, but also from one division to another division, from GR Shop of Electrical Shops, Mughalpura Pakistan Railways to C & W Shop, Hyderabad on 24- 6-2000. That transfer order was passed in clear disregard of the settlement policy of Railways laid down in rule 1 of Section V of Advance Chapter No,1 of Personnel Manual and against the rule of employment relating to the Seniority and promotion applicable to the petitioner. Petitioner was on 10 days' leave w.e.f, 24-6-2000 to 3-7-2000 so the impugned letter of his transfer was not served upon him. The impugned order was passed only to jeopardize the trade union activities of the petitioner which is a clear case of unfair labour practice and as such is liable to be set aside.
3. The petition was, vigorously contested. Following preliminary objections were raised:-- ' Or The impugned order has already been implemented so the petition has become infructuous.
(ii) Petitioner has not come to the Court with clean hands.
(iii) The case of the petitioner is hit by provisions of section 2-A of Service Tribunals Act.
(iv) Transfer is a prerogative of the employer. The impugned transfer order was passed in routine.
(v) It is not a case of unfair labour practice.
' On facts assertions of the petitioner were also refuted. The transfer of the petitioner from Power House, Mughalpura to C&W Workshop, Hyderabad is legal and lawful. Leave of the petitioner was cancelled and he was relieved of his duties at Lahore on 26-6-2000. Petition is liable to be rejected.
4. Parties were asked to produce evidence. Petitioner submitted affidavit in support of his petition which is Exh.P/1. He was cross-examined. According to the seniority list he falls at Serial No,5. This fact was admitted that different unions protested against the respondent-Officers on 8-12-1999. He also participated in that protest. He also admitted that respondent-Authority approached the NIRC regarding stay order and stoppage of union protest. At present Hyderabad Workshop is a part of Karachi, previously it was part of Mughalpura Workshop. He denied that his union is not a CBA. He is member of General Council. He denied that he was transferred under the exigency of service. He denied that he was relieved from his duty.
5. During the cross-examination on the petitioner, this fact was suggested that he is a trade unionist and Member of General Council. He participated in the protest against the Railways Officers on 8-12-1999 and the matter was brought to the notice of this Commission by the respondents meaning, thereby the petitioner is an active member of a trade union. He participated in the trade union activities and launched protest against the respondents, so the element of unfair labour practice and victimization due to trade union activities has been established on the record.
Particularly when he was transferred from Mughalpura Workshop to Hyderabad Workshop which is not a part of Mughalpura Workshop. This fact has also been established on the record through Exh- R/2 that petitioner was on leave since 24-6-2000 to 3-7-2000 and his leave was cancelled on 6-6- 2000 only to implement his transfer order immediately, and this fact indicates that the respondents were after the petitioner due to his trade union activities otherwise there was no sense to cancel his leave without justification only to implement the transfer order, and this circumstance is indicative of the mala fide on the part of the respondents.
6. On behalf of the respondents M. Idrees, Assistant Personnel Officer, Workshops has produced his affidavit which is Exh.R/1 which also denotes that there was unrest in the Workshops. According to the seniority list petitioner is at Serial No,2. He participated in the agitation. The matter was brought to the notice of his Commission, because of the agitation. The transfer of -the petitioner from Mughlapura Workshop to C&W Workshop, Hyderabad is due to exigency of service. The order was legal. The leave of the petitioner was cancelled in accordance with law for the implementation of order of his transfer. The remedy against the impugned order lies with the FST. He was cross- examined. He has not denied this fact that the employee who was at Serial No,1 of the seniority list has been retired on 4-12-2001. The petitioner was transferred to Hyderabad on the demand of Carriage Factory. He was not able to produce the sanction which they have got from General Manager Railways for the transfer of the petitioner. He admitted that 10 days' leave of the petitioner was cancelled after 2 days. The petitioner has produced the copy of the stay order on 12-8-2000.
He was not taken back on his duty. He admitted that petitioner is an active member of Railways Workers' Union. He also remained General Secretary of the Union. He denied that petitioner was transferred only to hamber with his trade union activities and his promotion.
7. As far as the factual position as discussed above is concerned the petitioner was transferred only because of his trade union activities. Overdoing of the respondents further verified this fact that petitioner was transferred only to vitimize him because of his trade union activities as his 10 days leave was cancelled just after 2 days without any legal justification only to implement illegal transfer order. He was transferred from one Workshop to another Workshop in clear violation of the policy of the establishment. This is also an admitted fact on the record that petitioner is at the top of the seniority list of Mughlapura Workshop. To knock down his further promotion being a senior most he was transferred to C&W Workshop at Hyderabad which is having no concern with the Mughalpura Workshops at Lahore.
8. Now I will advert to the legal objection which was vehemently raised on behalf of the respondents, regarding applicability of section 2-A inserted in the Federal Service. In this regard I will rely upon the authoritative view of their Lordships of Supreme Court of Pakistan reported in 2000 SCMR page 826. The relevant portion reads:- "S. Servants Act (LXXI of 1973), S.2(b)---Employees though not falling in the definition as given in S.2(b), Civil Servants Act, 1973 were covered by the provisions of S.2-A, Service Tribunals Act, 1973--- Principles---Scope and application of S.2-A, Service Tribunals Act, 1973---Fact that persons were employed in the Organization/ Corporation on contract basis could not disentitled them to the remedy of appeal which became available to them on account of incorporation of S.2-A in the Service Tribunals Act, 1973."
9. In view of the above-referred guiding principle it has become crystal clear that section 2-A was inserted in the Service Tribunals Act to-provide remedy to the employees of the Organisation/Corporatoin before the Federal Service Tribunal regarding terms and conditions of the service previously which was not available to them. It was also clarified that the insertions of section 2-A, in the FST has created a class of Government servants to avail remedy of appeal before the Service Tribunal. The applicability of section 2-A was regarding the employees who were not falling in the definition of civil servant given in section 2-B of Civil Servants Act, 1973. I would like to distinguish most important aspect that the employees of the Establishment which work for the gain who were already Civil Servants in view of section 2-B of Civil Servants Act and they were having the legal right to approach the Labour Court as well as this Commission who falls within the definition of worker/workman keeping in view the mandatory provisions of section 2, subsection (xxviii) of LR.O., 1969 which reads:-- "'Worker and 'Workman means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire of reward either directly or through a contractor whether the terms of employment be express or implied and for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or otherwise removed from ' employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off or removal has led to that dispute' ."
' Subsection (i) of Industrial and Commercial Employment (Standing Orders) Ordinance, VI of 1968, which also relevant portion reads:-- ''Workman' means any person employed in any industrial or commercial establishment to do any skilled or unskilled manual of electrical (work) for hire or reward."
' Section 2 N-1 of Workmen's Compensation Act also defines workman relevant portion reads:
(N) "'Workmen' means any person (other than a person whose employment is of a casual nature and who is employed otherwise than for the purpose of the employer's trade or business who is-
(I) a Railways servant as defined in section 3 of the Railways Act, 1890 (IX of 1890) not permanently employed in any administrative district or sub-divisional office of a railways and not employed in any such capacity as is specified in Schedule II or."
10. In view of above-referred provisions of law the Railways employees who were falling within the definition of worker/workman were having privilege to approach this Commission if they were succeeded to establish, that due to their trade union activities they have been victimized as such, made of a case as Railway Establishment which works for gain unfair labour practice. So, I will also like to have emphasis on the point that where an employee/workrnan of an establishment which works for gain is succeeded to prove that he is member/office-bearer of a trade union of workers/workmen of the same establishment and he has been victimized due to trade union activities then this Commission has got the exclusive jurisdiction to entertain the grievance of the employee and to adjudicate upon the same in accordance with law. So, in this case in the light of above discussions there will be no applicability of section 2-A inserted in FST Act. The preliminary objection raised on behalf of the respondents is hereby turned down.
11. As the petitioner was transferred with mala fide intention only to victimize him due to his trade union activities and his leave was cancelled quite in an illegal manner without any legal justification only to show that the transfer order has been implemented. Such-like acts could not be allowed to continue for the interest of justice and to safeguard the employees as well as dignity of the establishment. So, the impugned order is set aside. Respondents are directed to allow the petitioner to perform his duties on the place of his posting from where he was illegally transferred.
Respondents are further directed to release his salaries and not to perpetuate unfair labour practice upon the petitioner as they have done in this case. Petition stands accepted. File be consigned to the Record Room after its completion.