1982 PLP 467 (PLC)

3. The common case of the petitioners briefly is that they are mem bers of the "Karachi Gas Company. Ltd. Officers Association" (which was registered as a trade union by the Registrar of Trade Unions, Sind for the year, 1972) and that as members of the negotiating committee, they undertook collective bargaining with the management of the respon dent company in connection with certain grievances of their members. The Management objected to the trade union activities of its officers serving in the executive cadre and specially of the petitioners. The petitioners pleaded that they have been selected four victimisation and exemplary punishment, so much so, that on 5th‑ February, 1981 the Management ordered their immediate transfer to Indus Gas Company Ltd., Hyderabad. That in order to further humiliate and serve as a warning to other members of the Officers Association, the management got the transfer orders circulated among ail employees as an Office Circular. The petitioners averred that the transfer of their services to another employer, Indus. Gas Company Ltd. is not only illegal and incompetent but also male fide and a punishment. They prayed that it may be declared that transfer of their services to an altogether new employer without their consent is not a condition of their service and for issue of directions to the respondents to withdraw the transfer orders.

4. The respondent Company filed a reply statement that the Manag ing Director was fully authorised and competent in his discretion to transfer the petitioners to the Indus Gas Company Ltd., Hyderabad. It was pleaded that Karachi Gas Company Ltd. is a Federal Government managed establishment under the Economic Reforms Order. 1972, as it is managed by a Board of Directors, majority of whom have been ap pointed by the Federal Government under Article 7‑F (3) of the Order, while the Managing Director has also been appointed by the Govern ment under Article 7 (3) (a) thereof. The Government also owns the majority of the issued shares in the Respondent Company said to be 44.96Q~o through the P.

1. D. C. That P. .I. D. C. also administers and controls other units, projects arid companies and the Indus Gas Com pany is one of such units. That tire transfers in question being inter corporate transfers were permissible with the approval of Chairman of the P I D C under Policy Directive issued by the Federal Government in the Ministry of Production dated.1st July, 1980 clarifying toe procedure for appointments/promotions/transfers to posts in managerial and execu tive cadre. As such, it was pleaded that the Respondent Company was bound to follow the instructions of the Federal Government. It was further pleaded that the petitioners were liable to be transferred under their letters of appointments/Service Rules and prayed that the petitions may be dismissed.

5. I have heard Ch. Rashid Ahmad for the petitioners sad M. Jamil Advocate for the respondent. M. Jamil raised a preliminary objection' that the Specified Authority had no jurisdiction on the ground that the' petitioners are not workmen. This argument is misconceived. The provisions of the said Act, unlike those of the Industrial Relations Ordinance, 1969, apply to all classes of employment and to all persoas1`4 engaged in employment of .the Karachi Gas Company Ltd. whether he be a workman or not, and whatever post he may occupy, so long as he is engaged in employment and draws wages. 6. 0n merits two questions arise for determination: (I) whether respondent is legally competent to transfer the services of the petitioners to another company and if so, (2) whether the Transfers were bona fide, just and equitable.

7. It was contended on behalf of the respondent s that it had frill power and authority to transfer the petitioners under (1) their respective letters of appointment, (2) Service rules, and (3) under the policy directive issued by the Ministry of Production contained in letter dated 1st July, 1980 addressed to the Chairman P.I.D.C. I w ill examine these contentions seriatim.

8. Two of the petitioners Sardar Ali and Mohammad Saeed who were in employment prior to the take over under the Economics Reforms Order, 1972, were offered new assignments by the Managing Director under letter dated 20th September, 1976 which provided that the Federal Government may transfer them to any Corporation or Company, managed by the Government. But as rightly pointed out by Ch. Rashid Ahmad, the transfers in question were not made by the Federal Government, but by the Respondent company itself. Moreover, the Said condition of service is at variance with the protection given to employees at the time of taking over of the establishment, in view of Article 6 of the Economic Reforms Order, 1972, which provides that all employees $ball continue on the same terms and conditions as to remunerations and other conditions of service unless the Managing Director otherwise prescribes at the 'time of the take over. In this connection reference may be made to Nazar Mohammad v. Managing Director' MESCO, Multan (1). The contention of the respon dent therefore, is without substance.

9. In view of the said protection given to employees under Article 6, reliance cannot also be placed on rule 7.1 of the service rules, which provides that all executives of' the Company are liable to be transferred to any ‑Associate Company, Corporate body or any State‑owned Corporation in Pakistan or from time to time to any place in Pakistan. The service s rules cannot over‑ride the statutory protection given to employees tinder Article 6 of the Economic Reforms Order, 1972,

10. It was contended that the Respondent Company was a unit under the administrative control of P.I.D.C. like the lodes Gas Company Ltd., Hyderabad, in view of the Order dated 12th July. 1974, passed by the Federal Government under clause (1979 P L C 250) of Article 7 (e) of the Economic Reforms Order, 1972, ordering that the Management, as well as the proprietary interests acquired by the Federal Government, shall stand transferred to the W.P.I.D.C. The procedure for inter‑corporate trans fers, like the transfers in the instant case, were clarified by the Ministry of production in its letter dated 1st July, 1980 addressed to the Chairman P.I.D.C. In paragraph 4.12 inter‑corporate transfers of officers in execu tive cadre were permitted with the concurrence of the Chairman of the P. I.D.C. and it is contended that such approval was obtained to the trans fers of the petitioners under the aforesaid directive. This submission of the Respondent's Counsel is entirely misconceived; ' After the amendment of the Economic Reforms Order by the Economic Reforms (Amendment) Ordinance, 1978, Article 7‑F (5) (b) was added, which provided that the management of the establishment shall cease to vest irk the Corporation and the management and administrative control of the affair: of the establishment shall stand transferred to the Board of Directors. No pertinent resolution of the Board of Directors approving the transfers has been produced by the respondent. The submission of the Respondent's Counsel is therefore, without any force.

11. I am also of the view that the transfers in question were not bona fide but were made by way of punishment. This is admitted by the respondent in paragraph 10 of reply statement filed by the respondent in which respondent stated as follows :‑ "The petitioner was indulging in trade union activities as being an officer and executive of the company, he had no business to interfere in the union affairs and subvert settlement reached between the Management and the Union. In fact this act of the petitioner amounts to misconduct on his part. The respondent company taking lenient view against the petitioner only transfer red him from Karachi Gas Company to Indus Gas Company, whereas the petitioner could have been dismissed from service on this ground." This statement is based on a letter dated 5th February, 1981 addressed by Mr. 'Khan Tariq Hamid, Managing Director, to the Chairman P.I.D.C. soliciting his approval to the transfers. It is clear that the Management treated the trade union activity of the petitioners as an act of misconduct for which they were being punished by ordering their immediate transfer to another unconnected company in Hyderabad.

12. There is another aspect of the case which appear,. to have been overlooked by the management. Under section 5 (1) of the said Act, any employer of a person engaged in an essential employment who, without reasonable excuse, discontinues the employment of such person is guilty of an offence punishable under section 7 (1) with imprisonment for a term which ‑3y extend to one year and also to a fine. It cannot be denied that the services of the petitioners stood discontinued by virtue of their transfer to an altogether different employer. In fact the service files and records of the petitioners were also despatched to the transferee company. The only excuse put forward by the respondent company for the transfers, is that they were indulging in trade union activities and subverting settlement reached between the management and the Trade Union. However, if it is a misconduct, neither any independent investiga tion or enquiry was held, nor‑were petitioners given any opportunity to defend themselves. In the circumstances, it cannot be held that the respondent had established , `reasonable excuse' for discontinuing the employment. .

13. I would therefore, for the foregoing reasons allow these petitions and declare that the transfer of their employment to another employer is not a condition of their service, Directions are accordingly issued to the respondent company to withdraw the orders of transfers of the petitioners forthwith. I declare that the petitioners shall be deemed to continue to be in service of the respondent‑Company without any break in service. Petitions accepted.