1978 PLP 46 (PLC)

Industrial Relations Ordinance (XXIII of 1969)‑ ‑‑‑ S. 25‑A read with S. 15‑Transfer‑Workman (employee of WAPDA), officer of Trade Union having complained to Government about misappropriation of funds by WAPDA authorities transferred from Head Office to a subordinate office as a measure of victimiza tion‑Such transfer also in disregard of administrative instructions and prohibited by S. 15‑Findings of lower Court ‑in accepting application of workman against his transfer, held, maintainable. JUDGMENT This is an appeal against the order dated 5th December 1974 of Junior Labour Court No. 2, Lahore whereby the said learned Court accepted the application filed by Malik Mushtaq Ahmad respondent under section 25‑A of the Industrial Relations Ordinance, 1969, hereinafter referred to as the Industrial Relations Ordinance against the Chairman, WAPDA, WAPDA House, Lahore and General Manager (Water), WAPDA House, Lahore.

2. Malik Mushtaq Ahmad respondent who joined the service in the Water Wing of the Head Office of WAPDA in 1969 as an Assistant was ordered to be transferred to the office of the Superintending Engineer, Surface Water, Hydrology, Lahore,‑vide order dated 14th June 1974. He filed an application under section 25‑A of the Industrial Relations Ordinance before the learned Court seeking cancellation of the aforesaid order of his transfer and a direction to the effect that he might be posted in the Head Office in WAPDA House. He contended in his application that he was the Zonal Chairman of WAPDA Peoples Union Punjab and the General Secretary of WAPDA Workers Federation. He further contended that as an officer of the Federation, and of the union he took active part in the investigation in respect of the case of misappropriation of public funds to the tune of Rs.8,00,000 regarding payment of honoraria relating to Islamic Summit. On account of this the respondents got annoyed with him and as a measure of victimization he was ordered to be transferred to a Project Office although according to the rules of the service, he being an employee of the Head Office could not be transferred to a subordinate office. His transfer in the circum stances according to him was violative of section 15 of the Industrial Relations Ordinance.

3. The application of the respondent was opposed by the appellant who pleaded, that the transfer of the respondent was ordered in due course and such a transfer could not legally be challenged under section 25‑A of the Industrial Relations Ordinance.

4. The respondent appeared as his own witness before the learned court below while Mr. Khurshid Mustafa the Senior Superintendent of Establishment Section of WAPDA testified on behalf of the appellants. After consider ing the oral as well as documentary evidence produced by the ‑parties the learned Lower Court accepted application of the respondent filed under section 25‑A of the Industrial Relations Ordinance through the impugned order, dated 5th December 1974.

5. The under consideration appeal has been filed in this Court on 21st December 1974. It has been contended by the respondent that the appeal was barred by time. It appears from the copy of the impugned order enclosed with the memorandum of appeal as well as from the contents of the applica tion filed by the appellants under section 5 of the Limitation Act that one day was spent by the appellants in obtaining the copy of the impugned order. Period of limitation provided for filing an appeal under section 36‑D of the Industrial Relations Ordinance is fifteen days. The impugned order was announced on 5th December 1974. The present appeal was filed on 21st December 1974, The day of announcement of judgment and the day on which the appeal has been filed are not to be taken into consideration while completing fifteen days period of limitation provided for filing of an appeal. In this manner the appeal is not time‑barred. Even if by any stretch of imagination it be deemed that the appeal is belated by one day, I would condone this delay keeping in view the time spent in obtaining the copy.

6. As regards the merits of the appeal it is noteworthy that it is clearly provided in section 15 (d) of the Industrial Relations Ordinance that no employer shall transfer a workman by reason that the workman participated in promotion, formation or activities of a trade union. This is an admitted fact that the respondent is the Zonal Chairman of WAPDA People's Union, WAPDA House and is General Secretary of WAPDA Workers Federation. He appearing as his own witness stated that after the Islamic Summit the respondent paid honoraria to none persons. The respondent complained against it. An enquiry followed. He has produced Exh. P. A. a letter addressed by him in this behalf to the Minister for Fuel, Power and Natural Resources, Government of Pakistan, Islamabad. On this letter there is an endorsement by the Minister that he wanted a thorough contained in the application presented by representative of the WAPDA Workers Federation. The respondent has further stated that a probe was conducted by the Deputy Secretary of the concerned, Division. No final decision in the matter of course has yet been taken but on account of this grievance he has been transferred to a subordinate office, although being an employee of the head office he could not be transferred to a subordinate office. He has also stated that his entry in the WAPDA House has been banned.

7. In rebuttal, as stated earlier one Mr. Khurshid Mustafa, Senior Superintendent of Establishment Section of WAPDA has appeared before the Junior Labour Court. This witness has not uttered a single word to rebut the allegation of the respondent that he was transferred on account of his Trade Union activities. This witness rather admitted that the respondent was transferred from the Head Office to a Project Office, which was sub ordinate office and according to the relevant service rules an employee of Head Office could not be transferred to a subordinate office. He has also admitted that the respondent was an active officer of Trade Union. The respondent has produced Annexure R. O. a copy of the letter, dated 30th September 1970 issued by General Manager, Water Wing, WAPDA House, Lahore to all General Managers, Chief Engineers, Water Wing WAPDA. According; 1 the contents of this letter an instruction has been issued to the effect that to e staff appointed/working against the posts of Head Office should not be transferred to Projects and vice versa. It may be true that this letter merely contain administrative instructions and does not tantamount to statutory ruler; regulations. In the circumstances breach of instruction contained in the letter may not be considered as a breach of a right guaranteed under any law. The fact however remains that according to the unrebutted evidence on the records of the case the transfer of the respondent has been ordered a measure of victimization on account of his Trade Union activities, inasmuch as, being an officer of a Union and the WAPDA Workers' Federation complained to the Ministry concerned about misappropriation of funds connection with payment of honoraria after the Islamic Summit, and the Minister concerned was pleased to order holding of an enquiry on his complaint. We cannot also lose sight of the fact that the respondent being an employee of the Head Office has been transferred to a subordinate (Project) office in disregard of the administrative instructions contained in A letter dated 30th September 1970. Such a transfer is certainly prohibited by section 15 of the Industrial Relations Ordinance. Findings recorded in this behalf by the learned lower Court are, therefore, maintainable.

8. I would accordingly uphold the impugned order and dismiss the appeal with this modification that the appellant would be at liberty to post the respondent in any of their establishment of the Head Office located at Shadman Colony, Sunney View, Gulberg and WAPDA House, etc.