1976 PLP 250 (PLC)

2. The defence case is that the transfer in question was bona fide as the Quetta units of this newspaper had been facing shortage of "calligraphists" hence the Manager of the newspaper at Quetta asked the Managing Director, Karachi vide letter dated 16-1-1973 (Exh. D/7) to make good this shortage, therefore, the complainant and one calligraphist was ordered to be posted there. It was also urged that the complainant was liable to be transferred from Rawalpindi under the terms of his contract of service and thus he had wrongfully challenged these orders. As regards the election it has been stated that Management had never been informed about the election and for the first time this fact came to its notice on 6-12-74 vide (Exh. P/1), a news item appearing in Daily Pakistan Times, in this connection. The accused has strongly repudiated all the allegations and explained that he had no ill-will against the complainant on account o f his participation in 1970 strike and the present case had been filed only to get the transfer orders withdrawn. He has further added that no registered Trade Union of workers existed in 1970 and the complainant's role in that strike was also not extraordinary so that he (the complainant) could conceive of an idea of subverting Trade Union activities in his organisation by victimizing the accused. On the other band, the Management had encouraged its employees in Rawalpindi to form a Trade Union like other units of this newspaper where Trade Unions of workers already existed.

3. As a result of preliminary inquiry charge was framed on 27-12-1973 only against the above named accused (Mir Javed-ur-Rehaman) who is Managing Director of 'Jang' Rawalpindi while the other accused (Muhammad Ahsan) was discharged.

4. The prosecution has produced three witnesses including the complainant, who has reiterated the facts mentioned by him in the complaint. He has admitted that according to the constitution of the Union, elections were due in February 1974, but the general body decided to hold election in December 1973 with the consent of the President. He has produced copies of the minutes of the meetings held in connection with the elections which are Exh. P/7 dated 5-11-1974, Exh. P/8 dated 8-11-1973, Exh. P/11 dated 5-12-1973. He has also produced the minutes of the meetings held to protest against his transfer as Exh. P/9 dated 28-11-1973 and copy of the resolution passed by the Union protesting against the impugned transfer as Exh. P/10 dated 28-11-1973. A perusal of Exhs. P/7 and P/8 shows that it was decided that the election should be held in December, but a positive step in this-direction was taken only on 5-12-1972 vide P/11 when election committee was appointed and news to this effect were released to the press which appeared in Daily Pakistan Times date) 6-11-1973 (Exh. P/1). He has also stated that elections were due on 26-12-1973 but his rival group in the Union obtained stay orders from the civil Court, hence elections could not be held. However, as there was no contest for the post of the President, he was, therefore, declared elected unopposed. He has further alleged that on 23-11-1973 and on some other occasions he was taken to the accused by the General Manager of the newspaper and the accused threatened him of sending to "Kala Pani" (Quetta) in case he did not give up his Trade Union activities. He has shown his ignorance as regards any intimation having been sent to the Registrar, Trade Unions or the Management about the election schedule. P. W. 2 is General Secretary of Rawalpindi Union of Journalists. He has stated that the complainant had played a leading role in 1970 strike as a consequence of which his service had been terminated by the accused. He (witness) tried to approach the accused with a letter of request written on behalf of Rawalpindi Union of Journalist requesting that the complainants may be re-instated but the accused refused to see him. But in cross examination he has admitted that he tried to hand over the said letter to one Mr. Ashrafi, an employee of this organisation and not to the accused. He has further contradicted himself by saying that he did not know if any strike took place in 1970 in 'Jang' Rawalpindi. This witness has admitted that he had been attending the Commission on almost all the hearings of this case. He is thus an interested witness. Besides this, his, statement is not of much avail to the complainant as far as establishing of a case of unfair labour practice is concerned. P. W. 4 is General Secretary of the complainants' Union. He has inter alia stated that on 5-11-1973 a meeting of the executive committee was held which decided to hold mid-term elections and on 8-11-1973 this decision was endorsed by the general body of the Union He has also stated that the Management not only knew about the election programme but also that the complainant was a candidate for the office of the President of the Union because it had been decided even earlier than 5-11-1973 that he (complainant) would be elected President of the Union. Here it may be remarked that the minutes of the meetings have been recorded on loose sheets which were later on tagged with the minute book. The printed minute book provides separate columns for the signature of the participants of the meeting and also for the writing of the minutes. A question was put la course of cross-examination as to why proper use of the minute book was not made and why minutes of each meeting were not confirmed in the subsequent meeting but no satisfactory reply has come forth from the witness. The way the record of the meetings has been maintained, minutes of the said meetings cannot be accepted in evidence without a shadow of doubt in respect of their authenticity. He has further said that the members of the Management used to sit in Union meetings despite member's objections and therefore the accused had come to know about the election programme as well as the candidature of the complainant. It is significant that in the copies of the minutes of the Union meetings there is no mention of the fact that representatives of the Management people ever attended the Union meetings or the members of the Union raised any objection thereon. P. W. 3 has categorically stated that all what the members said was brought on record verbatim. Hence, if the Management people had been attending meetings and the same was also objected to by the members there is no reason why it should not have brought on record, a resolution passed, or a complaint made either to the Management or other authorities in this respect. The accused has produced the witnesses to support his contention that the impugned transfer was bona fide and that he bad no knowledge about the elections or the complainant's candidature. D. W. I., is Head Calligraphist and it was on the basis of his recommendation that the complainant was ordered to be transferred to Quetta This witness has deposed that he not only suggested the name of the complainant for transfer but als3 that of his son Nisar-ul-Muazzam who was also working at Rawalpindi. This part of the witness's statement has not been challenged in cross-examination, there fore it stands proved that the accused did not intiate transfer of the complainant but in this regard a letter Exh. D/7 was written by the Quetta Office to the Managing Director at Karachi who endorsed it to the Rawal pindi office and the accused ordered the transfer of the complainant and one other on the recommendation of this witness. From the statement of this witness it came out crystal clear that the Management did not regard Quetta as an unattractive station and did not transfer its employee there by way of punishment or victimization, as if it had been so the witness would not have recommended the transfer of his son besides the complainant. On the other hand posting at Quetta was regarded more beneficial to the employees for the reason that higher salaries were paid to the staff posted there as disclosed by this witness. D. W. 2 is General Manager of Daily `Jang', Rawalpindi. He has also stated that no threat was extended to the complainant as alleged, and that the transfer of the complainant was ordered on the recommendations of D.W. 1 and it was a routine transfer. The points for determination in this case are (a) as to whether the complainant's transfer was effected in order to victimize him for his Trade Union activities or to deprive him from contesting the elections, and (b) whether the Management had ill-will towards the complainant ever since 1970 strike and the step in question was taken by the accused to punish the complainant for his Trade Union activities which continued since 1970. From the discussion of the evidence it is manifest that the complainant did not play any extraordinary role in the 1970 strike and his activities after 1970 have also not been such which could be regarded by the Management as hazardous or detrimental to their interest. Had it been so the Management would not have spared him during the long period which lapsed between his re-instatement and the transfer in question. There is also no convincing evidence coming forth on the point that on or immediately before 27-11-1973 the Management had come to know about the elections as well as about the candidature of the complainant. Even if this condition is accepted, reliance shall have to be placed on record. The names of the con test-ants have not been recorded in the proceedings of the Union meetings and if it had been done it would have been highly unusual too. The other evidence about the election programme is news items appearing in Daily Pakistan Times. The first news in this connection appeared on 6-12-1973 to respect of the nominations of election committee. This as well as other news items produced as Exhs. P/2 to 4 do not speak about the complainant's candidature for the post of President. Through Exh. P/4 the transfer of the complainant had been condemned by the complainant-Union as well as Rawalpindi Newspapers Workers' Union. A resolution was also passed in this respect, but this news item is also consequently silent on this point as it has not been mentioned therein that the complainant who had allegedly been transferred by way of vitimization was a candidate in the forthcoming elections As such P. W. 3's assertion that even before the Union's meetings first of which was held on 5-11-1973, it had been decided by the workers that the complainant should be elected un-opposed does not carry any weight. The allegation that the members of the Manage ment and specially D. W. 2 had attended the meetings and therefore they had learnt about the election programme is also not believable because this objectionable activity of the Management which is also said to have been resented by the Union members has neither been brought on record of any meeting nor any resolution was ever passed or a complaint made to any Court or authority in this respect. Therefore, simply to say that some members of the Management attend the Union meetings would not suffice. Admittedly the Union did not communicate to the Management its election programme. The complainant also does not seem to have communicated his intention of contesting the elections to the Management. On the basis of the evidence available on record the accused cannot be presumed to have known the election programme before 6-12-1973 the date on which the first news item appeared in the said newspaper in this connection. As far as the candidature of the complainant is concerned the Management cannot be presumed to have known about it earlier than 20-12-1973 when the news about the acceptance of the complainant's nomination papers had appeared in the press vide (Exh. F/23). There is therefore no evidence to prove that on or before 27-11-1973 the Management had any knowledge about the elections and the transfer of the complainant was directed with a motive to deprive bin, from participation in the election. The other allegations levelled by the complaint that on 23-11-1973 and on some other occasions D. W. 2 took him 'to the accused who threat ened him of dire consequences including his transfer from Rawalpindi to Quetta in case he did not give up his Trade Union activities is also not believable as on this point no evidence has been brought on record except the solitary statement of the complainant. It is not understandable as to why the complainant did not initiate legal proceeding against the accused when such threats were extended to him. At least it may be reasonably expected from him that he would have lodged a complaint with his Union but he did not do so. So much so that in the Union meetings which were held in connec tion with elections and to condemn his transfer he did not mention of this fact. This allegation therefore seems to be an afterthought and is not worthy of any consideration. The accused has brought on record an order of the Presiding Officer of Punjab Labour Court No. 1, Lahore, which reveals that the complainant rival group in the Union had challenged the proposed mid-term elections and the Court had later allowed the withdrawal of the case on 31-1-1974 in the light of the statement of the counsel for the complainant (respondent in this case). In this statement the complainant's counsel had conceded that the complainant will have no objection if the elections were held in February 1974 as provided in Article 13 of the constitution of the Union. The complainant's averment before me that he had already been elected unopposed in the election held in December 1973 does not seem to be correct. Had it been so the learned counsel would not have omitted to make a statement before the Labour Court that his client had already been elected President of the Union. The fact of litigation in respect of this election and the culmination of the litigation with the statement referred to above makes it clear that the elections are still in controversy and the complainant has made a mis statement before me that he had been elected unopposed. The learned counsel for the accused argued that the Management had a right to transfer the complainant and this right of the Management could not be challenged by the complainant. In this connection he has placed reliance on the case reported in 1963 P L C 164, 1952 P L C 168 and 1968 P L C 330. 1 am in full agreement with the learned counsel that it is Management's sole discretion to transfer its employees in the interest of its business and this discretion cannot be ordinarily interfered with. However, this discretion is not unfettered and it is always to be exercised keeping in view the provisions of I. R. O., 1969, which has placed an embargo on the exercise of this power in some cases. As a result of the above discussion I am of the opinion that the complain ant has not been able to make out a case of unfair labour practice against the accused. Consequently the complaint is dismissed and the accused is discharged.