1994 PLP 284 (PLC)

Ghulam Sabir for Petitioner. Muhammad Latif for Respondents. By office order dated 10‑11‑1992 (Annexure A) of respondent No.2, Mehar Shah, petitioner, has been transferred to Sub‑Office Mardan as replacement of Umer Bakhsh, Vehicle Mechanic.

2. The petitioner has challenged his transfer by filing petition under section 22‑A(8)(g) of the IRO, 1969, accompanied by an application for grant of ad interim stay, alleging that the petitioner had been made victim of excesses at the instance of the rival union on account of his trade union activities performed in the capacity of member of the Central Executive Body of the Road Transport Board Employees Union namely Awami Workers Union duly approved and registered by the Commission. The transfer was also stated to have been made in contravention of the agreement dated 13‑9‑1983 (Annexure B), executed between the CBA union and the administration, stipulating in demand No.5 that no employee shall be transferred as a measure. of victimization and transfers of drivers/conductors made on complaints shall be ordered after due inquiry.

3. The management in its comments, denied the allegations of the petitioner and claimed to have ordered his transfer in the interest of work'.

4. Mr. Ghulam Sabir, Advocate appeared on behalf of the petitioner, whereas Mr. Muhammad Latif, Advocate represented the management. I have heard, them at length.

5. It is not denied that the petitioner is posted in Peshawar since 7‑1‑1987 and according to para. (vii) of the Appointment Letter of the petitioner, he is liable to be posted or transferred to any station where the Road Transport Board is in operation. This para gives unfettered right to the management to post the petitioner to any station where the R.T.B. is in operation. The petitioner has not assailed the appointment letter. There can be no two opinion that 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 the every management and does not constitute unfair labour practice. The management has the right to utilize the services of its employees according to the needs and requirements of the organization. The petitioner has been shifted to Sub‑Office Mardan against the post of a Vehicle Mechanic. The petitioner is Vehicle Fitter. It is not understandable as to how the nature of job of the petitioner has been changed and he has been asked to perform duties different from the nature of his occupation, in consequence of his transfer.

6. It has been vehemently argued that the hammer has fallen on the petitioner due to his trade union activities. The rival union is stated to be instrumental in the transfer of the petitioner. The management is also shown to be in league with the opposite union. There is nothing in support of the assertion. Absolutely no detail of any trade union activity carried on by the petitioner is given. A vague and general statement that petitioner is being victimized or is likely to be victimized for his trade union activities without any detail whatever, of those trade union activities which led to the transfer order, is not sufficient to make out unfair labour practice, Nazar Muhammad, General Manager, T.I.P. Haripur and another v. Ghulam Asghar and 4 others 1988 P L C

923. It needs no reiteration that transfer of any member of the union does not essentially involve violation of the provisions of section 15(1)(d) of the IRO, which deals with cases of unfair labour practice on the part of the employer and places restriction on his power to dismiss, discharge, remove from employment (or transfer), 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 is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union, or participate in the promotions, formation or activities of a trade union. Law does not give licence to members/office ?bearers of the union that they cannot be transferred by the management. The transfer can be made at any time and at any place in the interest of the management and. it cannot be avoided in the, name of unionism unless it appears to be mala fide or made for extraneous consideration. Learned counsel for the petitioner in order to show that transfer of the petitioner was motivated due to union activities, invited my attention to demand No.5 of the settlement dated 13‑9‑1983 and contended that the petitioner's transfer could not be made without conducting an inquiry as required under demand No.5 of the settlement. The submission has not impressed me. The petitioner has been shifted in routine and not in consequence of a. complaint necessitating an inquiry. The petitioner cannot seek protection of demand No.5 of settlement. It has also been urged on behalf of the petitioner that the impugned transfer order has been passed for no good reason but to accommodate Umer Bakhsh, Vehicle Mechanic. Reliance has been placed on Muhammad Afzal v. Secretary Education, Government of the Punjab and 2 others 1992 P L C (C.S.)

117. The cited ruling is distinguishable and has no bearing on the facts of the present case. Nothing has been brought on the file to show that the transfer has been ordered not in the interest of the work but to accommodate Umer Bakhsh for undisclosed reasons.

7. The management is stated to have declined transfers of a large number of employees having permanent abode in Mardan without any justification and instead the petitioner has been picked up and directed to resume duty at Mardan. The management is accused to have done so with sole purpose to deter the petitioner to continue his union activities at Peshawar. The submission is without substance. There is nothing on the file to show that such request was ever made but the same was turned down by the management for sinister reasons.

8. Adverting to the question of jurisdiction of the Commission, I find that according to law laid down by the Honourable Supreme Court of Pakistan in the case of Iftikhar Ahmad v. President, National Bank of Pakistan and others (Civil Appeal No‑221) of 1985 and other appeals P L D 1988 SC 53, this Commission has jurisdiction to interfere only if a case falls within the scope of section 15 of the IRO, 1969. 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 following observations were made in the mentioned ruling:‑‑ "'It will, therefore, appear that the cases which the Benches are empowered to hear under the clause must have an element of unfair labour practice in them; it does not encompass cases where an allegation of unfair labour practice is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instances of unfair labour practice on the part of the employers as well as workmen. It is, therefore, not right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievances petitions even though they may not be relatable to unfair labour practice..."

9. In conclusion I am satisfied that the transfer of the petitioner has not been made on account of any trade union activity and that the respondents considered it in the interest of the authority and in the interest of the work to remove him from his place of posting and shift him to Mardan. No prima facie case of unfair labour practice has been made out by the petitioner and there is no need of any evidence in this connection. The petition fails which is hereby dismissed. Stay recalled. H.B.T./205/NIRC ?????????????????????????????????????????????????????????????????????????????? Petition dismissed.