1994 PLP 531 (PLC)

(i) that he had disobeyed the lawful order directing to report for duty at Multan; and (ii) that he was illegally and unauthorisedly absent from duty continuously since 8‑1‑1987 without sufficient and reasonable cause. There was no reply to this charge‑sheet and a Letter of Enquiry was issued on 21‑6‑1987 informing him to appear before Tahir Mehmood, Manager (Project) on 2‑7‑1987 and in case of failure the same will be held ex parte. He did not appear on the due date and the matter was adjourned to 9‑7‑1987. The information of this adjourned date was given telegraphically. This was replied to by the petitioner as follows:‑‑ "Reference your telegram dated 7‑7‑1987 calling for enquiry, I respectfully submit that the subject‑matter relating to the enquiry before you is also the subject‑matter pending adjudication before the Sindh Labour Court and as such it is sub judice. Therefore, I would request you to kindly connect the case and keep the enquiry in abeyance." This letter is dated 8‑7‑1987. On 13‑7‑1987 the Management had informed him that the proceedings could not be kept in abeyance and if he did not turn upon the next date which was to be on 16‑7‑1987, it will be at his own peril. He did not turn up on 16‑7‑1987. The enquiry took place wherein one Saleman was examined. The matter, thereafter, remained in a state of suspended animation.

4. To pick up the thread, it might be mentioned yet the petitioner had challenged this order before the Labour Court. There was another petition before the Labour Court as the order of his reinstatement was as a temporary employee. Both these petitions were allowed. The respondent had preferred appeals against both the orders. The appeal challenging his status as a permanent employee came to be dismissed by this Tribunal, but the other one in respect of the transfer order was allowed on 5‑12‑1990. The petitioner had then filed a Constitution petition challenging the order of transfer, wherein the respondent had made a statement that the matter of his transfer to Multan was no more under consideration because there was no vacancy there any more, and the petitioner was working in the Cash and Bank Section. The petition was, therefore, dismissed as infructuous on 4‑4‑1991.

5. It was in the, wake of this order on the Constitutional petition, to be precise, on 21‑5‑1991 that the Corporation dismissed the petitioner. He sent the grievance notice on 13‑6‑1991 which was replied to. As it failed to satisfy him the petition was filed before the Labour Court.

6. The petition was resisted by the respondents. It was alleged that since the applicant had refused to go to Multan, "the respondent had to fill the post, to which the applicant was transferred and thereafter he could not be transferred to Multan. The misconduct committed could not be condoned and he was dismissed for the same and therefore the grievance application was liable to be dismissed.

7. The Labour Court for the reasons given by it, found the material issues against the respondents (Corporation) and allowed the petition with full back benefits, observing "that as the order dated 5‑1‑1987 of the respondent, passed during litigation, had become infructuous and was not being pressed into service the order of the appellate Tribunal also in that regard had become infructuous and was not sought to be pressed against the applicant by the respondent of his transfer from Karachi to Multan (Store), therefore, there was no question‑ of disobedience of the said order of transfer and the applicant cannot be said to be guilty of the same".

8. I am afraid I cannot subscribe to the view taken by the learned Presiding Officer.

9. There can be no gainsaying the fact that he had been transferred to Multan and in spite of reminders had declined to report for duty there. This action of his certainly amounted to contumacy and flagrant insubordination. The appellant had initiated the domestic enquiry and the respondent was in full knowledge of the same. He had, however, not chosen to partake therein and defend himself. He could not have the Corporation at his tender mercy by boycotting the proceedings, and if the proceedings were held ex parte, he had to thank himself for the consequences. I am supported in this view of the matter from Dawood Cotton Mills v. Guftar Shah PLD 1981 SC 225.

10. The record clearly makes out that the respondent had been reinstated after the order of the Labour Court had gone in his favour. In view of the aforesaid order nullifying the transfer there was no question of his posting to Multan and a vacancy in the normal course brooks no delay and had been filled up. Therefore, when the statement was made on behalf of the appellants that they had no intention of transferring him to Multan any more, it can never be said to mean that they had condoned the insubordination of the respondent or that it had been white washed by passage of time. They had held the enquiry against him but had refrained from passing any order. They had to contend with the order of the Labour Court. Even after the judgment of the Appellate Tribunal, the Constitution petition was pending before the High Court. The order of dismissal came up a few weeks after the order on the Constitution petition. There was no question of any fresh notice. The statement before the High Court could not be stretched to mean that the respondent stood purged or absolved of his guilt.

11. It was, however, contended by Mr. Qamar Muhammad Khan, learned counsel for the respondent, that the order of transfer itself were mala fide as it was passed out of pique since the respondent had been reinstated after the earlier dismissal. I am afraid an allegation of mala fide needs the adducing of legal proof to establish it. No finding can be given, holding an action to be mala fide, on the basis of surmises, assumptions, assertions and bare allegations as held in the case of Water and Power Development Authority v. Amjad Hayat Butt and others 1986 SCMR

582. Further, in the case of Capt. Dr. Nabi Ahmed v. The Ministry of Defence and others 1985 SCMR 1649 it was held: "merely because the petitioner's transfer order passed by the Director was set aside by the Ministry, it cannot be held that thereby the Director, Military Lands and Cantonments entertained grudge or malice against the petitioner.‑It has been time and again laid down by this Court that an allegation of mala fides in respect of orders passed by public functionaries must be based on specific facts and proved conclusively. Such inference cannot be drawn from vague and general allegations." Transfer is an incidence of service and an employer cannot be deprived of his vested right. Wherever, a brake was intended to be applied, there are specific provisions in the Labour Laws.

12. I am of the opinion that the order of the Labour Court is not sustainable. I will, therefore, set aside the same and allow the appeal. H.B.T./2295/Lb.S Appeal allowed.