2005 PLP 105 (PLC)

The respondent/appellant filed written statement on 19‑6‑1997 and took objection to the very maintainability of the petition on the ground that the respondent/petitioner was not a workman as he was maintaining taxis by employing drivers. A plea was also taken that the respondent had been transferred through order dated 9‑6‑1997. During the pendency of the proceedings, an application was given by the respondent that in spite of status quo order, the establishment was not allowing him to enter the premises. While contrary plea was raised by the establishment that the respondent was avoiding his duties. The learned Member through an interim order dated 8th of December, 1997 directed that since there were two versions one by the employee and other by the establishment, as such with the consent of the parties this controversy was ordered to be resolved after recording of evidence. The parties led their evidence and the learned Member after scrutinizing the same accepted the petition through impugned judgment in the terms stated above. Hence this appeal. Learned Counsel for the appellant/establishment has argued that the learned Single Member has gone beyond the pleadings as the respondent never challenged the order of his transfer. He has further stated that in spite of fact that the respondent did not join the duty, the learned Member allowed him back‑benefits without providing any opportunity to the appellant. In short learned Counsel has vehemently stated that the appellant had been taken by surprise in the grant of back benefits in the impugned judgment. He has also stated at the Bar that the services of the respondent has since been terminated after passage of the impugned judgment for which the respondent had approached the Federal Service Tribunal for the redressal of his grievance. He also stated that it was a mere transfer of the respondent which is one of the incidence of service. Learned Counsel appearing for the respondent has controverted the stance taken by the appellant. He has stated that it was not a case of grant of back‑benefits. The respondent was not allowed to work/resume his duty in spite of status quo and in the circumstances since the functionaries of the establishment created obstacles in the way of the respondent to resume his duties, as such no illegality according to him had been committed by the learned Single Member by directing the appellant to pay him wages for the period of which he was not allowed to join his duties in spite of specific order by this Court. The learned counsel in support of his contentions has also read certain portion of the, evidence. We have considered the contention and have gone through the documents appended with this appeal. It must be stated at the very out set that the learned Counsel appearing for the appellant has not challenged the status of the respondent being workman as held by the learned Single Member. He, however, as reflected from the preceding paragraphs made two fold arguments stating that the appellant establishment was taken by surprise when an order of back‑benefits was awarded by the Court. Secondly the transfer being one of the incidence of service as such no exception can be taken to the same. The first argument that the appellant was taken by surprise qua awarded of back‑benefits is devoid of any force. It is reflected from the documents appended with the appeal that the respondent made an application before the learned member that status quo order passed by the learned Single Member on 10th of June, 1997, was not being honoured as he Was not allowed to enter the premises of establishment. On the contrary a different stance was taken by the appellant establishment that the respondent/petitioner himself was not attending his duties. The learned Single Member in view of these contradictory stances through an interim order dated 8th of December, 1997 directed that the matter being controversial would be resolved after securing evidence from both sides. It is reflected from the impugned judgment that the respondent has established beyond doubt 'that the appellant establishment blatantly refused to implement the order of status quo. The respondent was not allowed to enter the precinct of the establishment. This aspect further gets support from the record when the inquiry officer himself in the notice issued to the respondent called upon the establishment in the following words: "kindly allow the entry of defendant in Pakistan Steel to attend the Inquiry." This factum gets further strength from the fact that the respondent submitted many applications making grievance that he was not allowed to enter the premises. The submission of his applications of this nature has been admitted by Javed Mustafa Baloch, Assistant Manager of the establishment during the course of cross‑examination. All these afore stated factors bring us to an irresistible conclusion that the respondent F was not allowed to enter the establishment by the management, consequent to the order of the status quo passed by the learned Single Member on 10th of June, 1997. As far as order of transfer is concerned, it is reflected from the record that the respondent being chairman of People Workers Union; which was CBA at the juncture approached the Commission against; apprehending adverse action as the establishment was out to frustrate the charter of demands submitted by his union through illegal pressure by adopting unfair labour practices. The learned Single Member passed status quo order on 10th of June, 1997. The appellant establishment submitted its comments on 19th of June, 1997 pointing out that the transfer order had already been passed. However, as reflected from the documents and the same is not denied that the appellant/respondent passed relieving order on 10th June, 1997. The plea of the appellant establishment that the status quo order was received in the office after the passage of relieving order did not get support from the evidence brought on record. It has been brought on record successfully by the respondent that the transfer order was not in his knowledge when the status quo order was obtained by him. The appellant has not brought any evidence on record that the respondent was in knowledge of his transfer order passed on 9th of June, 1997 when it itself admitted that the relieving order was passed on 10th of June, 1997. Both these grounds taken by the appellant have not been substantiated by the learned Counsel. The plea of the appellant that it was not an act of unfair labour practice is also negated from the evidence brought on record. It is reflected their from that not only there was restraint by the establishment qua his entry in the premises but it is also reflected that the management got the respondent detained through District Magistrate, Karachi East, through order dated 25‑7‑1992 passed under section 3(2) of Sindh Maintenance of Public Ordinance, 1960 which order was set aside by the learned Judges of the Hon'ble High Court of Sindh vide order dated 11‑11‑1992. The matter does not end here as the appellant terminated the services of the respondent after the impugned judgment for which 'he had approached the Federal Service Tribunal. The appellant is only aggrieved by the direction of payment to him from June, 1997 till the decision of the matter i.e. 7th of November, 2001. Admittedly the respondent could not perform the duties for all this period due to the disrespectful attitude of the establishment as they not only dishonoured the order of this Court but they have also not allowed the respondent to entire in the office. The plea that the respondent did not challenge the transfer order is totally without force. The respondent approached the Commission I against apprehended adverse action on the part of the establishment. That action came to light in the form of transfer order which stance was taken in the written statement by the appellant. The learned Member after I scrutiny of evidence carne to the conclusion that the same had been passed as an act of unfair labour practice with the object of frustrating the Charter of Demands submitted by the Union. In this view of the matter no illegality has been committed by the learned Single Member in setting aside the, transfer order. Resultantly for what has been stated above, the appeal is dismissed. H.B.T./125/NIRC Appeal dismissed.