' This order shall dispose of the application for grant of stay annexed With the main Petition No 4A(1) of 2003 filed under section 49(4)(e) read with section 63(b) & (c) of the I.R.O., 2002 by Muhammad Ashraf son of Allah Din, Assistant Foreman and 10 others, employees of Gharibwal Cement Limited, District, Chakwal against the General Manager Gharibwal Cement Limited District, Chakwal with the prayer that the respondent be directed to maintain status quo in respect of the service of the petitioners and not to refuse to continue to employ them till the final disposal of the main petition.
2. Case of the petitioners as set out in the petition is that all the petitioners are permanently employed in the respondent-establishment i,e, Gharibwal Cement Ltd. As workers on the posts mentioned in the title of the case and also as mentioned in para 3 of the petition and that the petitioners Nos.2 to 11 are active members of Gharibwal Cement Employees Union while the petitioner No,1 Muhammad Ashraf claims that he had contested the internal election of the union recently for the post of Secretary from the panel of Chaudhry Fazal-ur-Rehman Group but he could not succeed. It is further stated that the entire panel belonging to the petitioner No,1 was defeated.
It is alleged that the rival group led by Muhammad Naeemullah is now in power and enjoying the status of C.B.A. It is next alleged that the petitioners are under the direct pressure and threat of victimization at the hands of the respondent-management with a view to compel them to disassociate themselves from their group and this attitude on the part of the respondent- management amounts to an act of unfair labour practice within the meaning of section 63(b) &
(c) of the I.R.O., 2002. It is further alleged that though the petitioners were given the posts as mentioned in the title of the petition after their good performance and eligibility but the respondent-management who are under the direct influence of the sitting C.B.A., are now acting in a manner calculated towards occurrence of unfair labour practice and it is strongly apprehended that the management will cause injury to the employment of the petitioners by way of demotion and transferring to such sections for which the petitioners were not qualified so that their job performance could be devalued and the respondent-management could get a chance to initiate disciplinary action against the petitioners which would amount to an act of unfair labour practice.
It is prayed that the respondent-management be directed not to commit any act of unfair labour practice and be permanently restrained from causing injury to the employment of the petitioners on the basis of discrimination and not to change the conditions of employment or working condition of the services of the petitioners.
3. This petition alongwith the stay application was placed before me on 4-1-2003, when after taking notice of the facts and the circumstances as mentioned in the petition and stay application and after hearing the learned counsel for the petitioners, the following ad interim order was passed:-- "In the meanwhile the respondents are directed to maintain status quo in respect of the services of the applicants/petitioners and not to refuse to continue to employ the petitioners till the next date of hearing."
4. Instead of filing their written statement and reply of the stay application, the respondent, management moved an application for dismissal of the petition and contended that in view of the proviso to clause "e" of subsection (4) of section 49 of the Industrial Relations Ordinance, 2002, there being no pendency of any industrial dispute, the petitioners are not entitled to the relief claimed by them and thus the same merits rejection outright. It is further contended that the prayer in respect of the grievance in the stay application is also not being materially different from the main petition, deserves the same fate. Even otherwise, the respondent-management has not committed any act of unfair labour practice and on that count also the petition as framed and filed is not maintainable. It is next contended that jurisdiction of this commission is dependent upon the happening of certain acts of ommission and commission constituting unfair labour practice, more specifically as contained in sections 63 and 64 of the Ordinance ibid and in the absence thereof, further proceedings in the instant case would be an exercise in futility and amounts not only to the abuse of process of law but also wastage of time of this Commission. It is further submitted that it is the cardinal principle of law that question of jurisdiction which goes to the root of the case has to be decided in the first instance.
4. The petitioners while filing reply to the application moved by the respondent for dismissal of the petition, have contended that an industrial dispute is pending adjudication before the Punjab Labour Court No,6, Rawalpindi as the respondent-company has applied for closure of the whole of the establishment. Regarding the legal objections and non-maintenance of the petition for want of element of unfair labour practice it was contended on behalf of the petitioners that it is a mixed question of law and fact and hence the application moved by the respondent for dismissal of the petition is not warranted by law and facts.
5. The aforesaid application was fixed for argument on 16-4-2003. During his arguments, learned counsel for the respondent requested for adjournment to file written statement and reply to the stay application. By consent of both the parties, the request was allowed, On 25-4-2002 the respondents while filing the written statement and reply to the stay application have resisted and opposed the petitioner by raising certain preliminary objections. On merit the respondent also controverted the allegations made by the petitioners. The main contention of the respondent is as under:--
(I) that the petitioners have no legal cause for filing the instant petition as they have suppressed and withheld the material facts with regard to their transfers which were made in the best interest of the establishment. It is further contended that Messrs Ahmad Hussain and Liaquat Ali "Telephone Operators" were transferred vide order dated 24-12-2002. Ahmed Hussain has received the order of his transfer, but has not complied with the order, while the other respondents were transferred on 27-12-2002, but they refused to receive their transfer orders on one pretext or the other. It is further contended that no specific instance with regard to the commission of unfair labour practice on the part of the respondent management has been pleaded, thus this petition is liable to be dismissed.
(II) that the petitioners were transferred from one Department to another at the same station without any change in the terms and conditions of their employment, nor the transfers as ordered, resulted in reduction of salaries of the petitioners as they were not appointed for any specific post, which needed special skill or knowledge. Thus the duties being performed by them and now assigned to them, do not affect the petitioners in any manner. It is contended that the petition has been made to frustrate the acts done by the employer in good faith for the effective operation and working of the establishment.
(III) that with a view to carry out operation of the enterprise effectively, the respondent- management took the workers into confidence through the C.B.A. Union and one of the terms and conditions as mentioned in the "Memorandum of Settlement" was to transfer the workers from one department to another for smooth and efficient working of the Factory. The petitioners by indirect method want to frustrate the said agreement.
(IV) that all the allegations of unfair labour practice are aimed to avoid the orders of their transfer, as the element of victimization and discrimination is lacking in the petition. It is also contended that the election of the union has nothing to do with the respondent-management as election of office- bearers is an internal matter of the union and the petitioners have themselves admitted that they have lost the election. It is further submitted that the petitioners were not employed for the posts previously held by them and it is the discretion of the management to adjust them against any of the available post. They were transferred in routine in good faith and in the best interest of the enterprise. It is also submitted that they have expressed their willingness, dedication and commitment to the jobs assigned to them. The respondent has denied that they are under the direct influence of C.B.A. Union. It is further contended that the respondent does not intend to demote or remove from service any of its employee. It is prayed that since no act of victimization has been specified nor any such cause exists which could be treated as an act of unfair labour practice and also no industrial dispute is pending, thus the petition be dismissed.
6. I have heard arguments of learned counsel for both the parties 'and have given my anxious consideration to their submissions. Law by now is fairly well-settled that before granting interim relief, the Court 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 concept of convenience/inconvenience of the parties and irreparable loss likely to be suffered by the petitioners 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 petitioners coupled with other material available on record, prima facie disclose the commission of any unfair labour practice on the part of employer because exercise of jurisdiction of this Commission depends only on such a finding.
7. On perusal of the record, I find that the case of the petitioners rests on bald allegations that the impugned action of the respondent-management is the result of trade union activities, thus I am not quite satisfied for the present that there exists any prima facie case of commission of unfair labour practice in favour of the petitioners as it cannot be said on the present record and attending circumstances that the impugned action was motivated only due to trade union activities or that it was intended to prevent the petitioners from performing their trade union activities. For all the reasons, I am of the view that there does not exist prima facia case of commission of any unfair labour practice. Balance of convenience also does not seems to lie in favour of the petitioners insofar as it is the terms and the conditions of the workers employed in the respondent establishment that they can be transferred and posted anywhere in the Factory. It is also an accepted proposition that it is the inherent right of the employer to transfer his employees from one place to another keeping in view their administrative requirements. However it is pertinent to observe that in para 5 of the "Preliminary objections" the respondent has submitted that:-- " With a view to carry out operation of the ' Enterprise' ., the respondent took the workers into confidence through the C.B.A. And one of the terms and conditions as mentioned in the "Memorandum of Settlement" was to transfer the workers from one department to another, which was the requirement for smooth and efficient working of the Factory.
8. It may also be observed that in his written statement, the respondent has categorically assured that "the respondent does not intend to demote or remove from service any of its employee". Thus in order to show that the impugned action of the respondent-management is an act of unfair labour practice, the petitioners should have placed on record necessary material in support of their contention which they have failed to do so. It may be pertinent to mention here that the stay application is also hit by the provisions of the proviso to clause (e) of section 49(4) of I.R.O., 2002 which lays down that no interim relief can be granted unless there is a pendency of an industrial dispute. The assertion that the management has gone to seek permission for the closure of the factory, does. Not amount to raising of an industrial dispute. It may be observed that the objection contained in the preliminary objections, taken on behalf of the respondent in his written statement are connected with each other, which can be examined and determined only after recording evidence of the parties.
9. Upshot of the above discussion is that the petitioners having failed to make out any prima facie case of unfair labour practice on the present record and other necessary ingredients of balance of convenience/inconvenience and likelihood of irreparable loss also not being in their favour, thus I find no merits in this application for the grant of interim relief which is hereby dismissed and the ad interim status quo order issued on 4-1-2003 is recalled. The main petition shall now come up on 14- 6-2003 for the petitioners evidence in the form of their affidavits.
Application for grant of interim relief dismissed.