2008 PLP 376 (PLC)

RAJA ABDULLAH KHAN (MEMBER).

This order will dispose of the above petition which has been received by transfer from the Court of Mr. Ghulam Nauman Shaikh, learned Member, Karachi on 22-1-2008.

2. The petitioner has filed this petition under section 49(4)(e) read with section 63(a)(d) of the I.R.O., 2002 and Regulation 32(2)(c) of the NIRC (Procedure and Function) Regulations, 1973 against the respondents with the following prayer:- "That this Honourable Commission may be pleased to:-. (i) deal and determine the case of unfair labour practice against the respondent, its officials, subordinates, agents and representatives in favour of petitioner and may also be pleased to grant relief in favour of the petitioner under the law. (ii) Restrain the respondents, its officials, subordinates, agents and representatives from committing acts of unfair labour practice as threatened by restraining them from dismissing, terminating, discharging, removing, transferring or any other adverse action which would affect the terms and conditions of employment of the petitioner as well as the conditions of work. (iii) Any other relief which this Honourable Commission may deem fit and proper and may pass order/orders in favour of the petitioner against the respondents."

3. The facts in brief giving rise to this petition are that the petitioner is an employee of the respondent Hotel as Laundryman for more than 20 years and has unblemished record of service at his credit. It is alleged that the petitioner is Vice-President of Pearl Continental Hotel Employees Union, Karachi which is non-C.B.A. and contesting the referendum by challenging the existing C.B.A. for determination of C.B.A. for which the referendum proceedings before the RTU are in progress. It is alleged that many dates to this effect have been fixed and many meetings held before the RTU but the Management of the respondent deliberately is avoiding and delaying the process by not attending or submitting the list as per directions of the RTU. Photostat copy of the change of office-bearers and notices issued by the RTU are filed with the petition as Annex: A to All. It is alleged that the Charter of Demands submitted by C.B.A. Union w.e.f. 1-1-2003 is pending before the Area Conciliator and the meetings for settlement are being carried out but the same have not yet been finalized and are pending for one reason or the other and as such the industrial dispute as prescribed under the law is pending and the management of the respondent is bound under the provisions of law not to change the terms and conditions of workers. A copy of the conciliation notice issued by the Conciliator is/are filed and marked as Annexures "B" to "B/2'. It is alleged that the petitioner is playing active role in the trade union activities specifically with regard to the holding of 'referendum which is not liked by the Officers of the respondents-Management who off and on call the petitioner with the direction to disassociate from the union and his trade union activities with regard to referendum proceedings but he has not yielded to their demand and as such he has been called on 6-8-2003 by Messrs Arif Jamal, Assistant H.R. and Syed Atique Ahmed, H.R. Officer with the specific direction in their office that in case the petitioner does not disassociate from the trade union activities and the proceedings, he would bear dire consequences by initiation of disciplinary proceedings against him on some concocted and digging grounds as 'well as by transferring him from the department where the condition of work and terms and conditions of the employment would badly be affected as a sort of punishment due to lawful trade union activities and as such there is every apprehension for fulfilment of their threats unless this Honourable Commission restrains them from passing any adverse order against the petitioner. It is alleged that even otherwise the management of the respondent hotel is restrained under section 20(15) of the I.R.O., 2002 besides pendency of the Charter of Demands and section 40 of I.R.O., 2002 wherein the right of the petitioner is duly protected during the pendency of the industrial dispute as well as pendency of application of referendum and as such this Honourable Commission is competent under the law to deal/determine the case of unfair labour practice by restraining the respondents from taking adverse action, order which badly affect the condition of work and terms and conditions of employment of the petitioner which would affect the image of the petitioner between the members/voters of the union and as such, such action if not restrained would badly affect the petitioner himself as well as the referendum proceedings which would culminate in crushing trade union activities on the part of the respondent-Management. It is alleged that the acts and actions of respondents do constitute acts of unfair labour practice under section 63(1)(a) and (b) of the I.R.O., 2002. It is alleged that the respondents intend to commit acts of unfair labour practice unless restrained, hence this petition within the jurisdiction of this Honourable Commission with the prayer as mentioned above.

4. The respondents have filed written statement in which they have contended that the petition is not maintainable in law as admittedly the applicant has not served any notice of grievance before invoking the jurisdiction of this Commission because proceedings under section 49(4)(e) of the I.R.O., 2002 are to be dealt with within the manner laid down under section 46 of I.R.O., 2002. They have denied all the allegations of unfair labour practice levelled against them by the petitioner. They have also contended that the petition is not maintainable under section 50(3)(a) of the I.R.O., 2002. They have contended that the petitioner was appointed as a Houseman in 1978 in the House-keeping Department where he worked as such till 1995 (about 17 years) and thereafter he was transferred as Laundryman due to exigency of service where he worked for about 8 years and now he has been retransferred to House-keeping Department as Houseman due to the exigency of service in accordance with the terms and conditions of his appointment letter dated 31-1-1978 which is simple transfer and the said transfer order has since been given effect therefore, the petition is liable to be dismissed.

5. In order to prove their respective contentions, the parties have adduced oral as well as documentary evidence. Petitioner has examined himself by filing affidavit dated 19-10-2004 in support of his case and has produced documents attached with the affidavit while the respondents have examined D.W. Maj. (Retd.) Aamar Gul son of Mast Gul Khan, their H.R. Manager in support of their case, he too has produced documents in support of his version. These witnesses of the parties were subjected to cross-examination.

6. I have heard the Advocates for the parties and perused the evidence brought on record carefully I have also considered the written arguments filed by Advocates for the parties. Chaudhry Latif Saghar, Advocate for the petitioner has contended that the impugned order of transfer of the petitioner dated 5-8-2003 which was given effect on 18-9-2004 after the dismissal of stay application of petitioner by the learned Member, NIRC, Karachi on 8-9-2004 from Laundry to Housekeeping Department is liable to be set aside because it is passed due to unfair labour practice on the part of the respondent on account of lawful trade union activities of the petitioner who is Vice-President of the Union which is pressing for the Referendum and is in violation of section 20(15) of I.R.O., 2002 and section 40(2) of I.R.O., 2002 as it is passed without the permission of RTU and this transfer, order has changed the terms and conditions of the petitioner. In support of his contention he has relied upon the authorities reported in 1987 PLC (Labour) 332, 1991 PLC 44, Unreported judgment dated 1-12-2004 in Appeal No.12(32) of 2001, Unreported judgment in Appeal No.12(8) of 2004 dated 6-12-2005, unreported judgment of Single Bench in Case No.4A(148) of 2002-K dated 17-1-2003 which has been upheld vide judgment dated 6-12-2005 in Appeal No.12(8) of 2004, PLC 1991 (Labour) 722, PLC 1992 (Labour) 424 (SC 1028) (HC), 1992 SCMR 2166 and 2005 PLC

219. This contention of the Advocate for the petitioner has been controverted by the Advocate for the respondents. He has said that no unfair labour practice whatsoever has been committed by the respondents and the petitioner has been transferred from Laundry Department to Housekeeping Department by order dated 5-8-2003/18-9-2004 in a routine manner in accordance with the terms and conditions of his appointment due to exigency of service. He further contended that no violation of section 20(15) of I.R.O., 2002 and section 40(2) of the I.R.O. has been committed by the respondents at all. He said that it is a simple case of transfer and the said transfer order having been implemented the petition is not maintainable and is liable to be dismissed. He urged that this petition has been filed by the petitioner in order to harass the respondents. In support of his contentions he has relied upon the authorities reported in 2003 PLC 52, 1999 PLC 229, 2001 PLC 103, Appeal No.12(24) of 2001 Shahid Naz v. KSB, Appeal No.12(36) of 1999 Hoechst Marrion v. Abdullah, Appeal No.12(05) of 2005-L Talat Mahmood v. WAPDA 2007 PLC 224 (Present Bench of the Commission), Appeal No.12(05) of 2007-K (K.P.T. v. Jalal Shah) and 2007 PLC 666.

7. I have carefully considered the contentions of both the Advocates for the parties and gone through the authorities relied upon by them. I am of the considered view that the contentions of Chaudhry Latif Saghar Advocate for the petitioner are not tenable nor the authorities relied upon by him support his view point at all while the contentions of Advocate for the respondent are tenable and the authorities relied upon by him support his view point. To my mind the provisions of sections 20(15) and 40(2) of the I.R.O., 2002 have not been violated in any way by the respondents in ordering the transfer of petitioner from Laundry Department to House-keeping Department which department is housed in the same building rather it is adjacent to Laundry Department. Even no terms and conditions of petitioner have been changed. He has been transferred to his present department where he was appointed in January, 1978 and where he worked till by 1995 and now he cannot agitate that his terms and conditions have been changed in any way by this transfer. By this transfer the trade union activities .of petitioner are not affected in any way hence no permission of RTU was required for this transfer it is admitted position that the order has been effected and presently the petitioner is working in the House-keeping Department since, 2004 where he has no complaint whatsoever against the respondents as is clear from his evidence. As such the petition is not maintainable at all before the NIRC because no unfair labour practice whatsoever has been proved by the petitioner against the respondents before this Court. In addition there is no prayer in the petition regarding the setting aside of the impugned transfer order. In the circumstances, no relief can be granted to the petitioner when he has not asked for it. In the circumstances, the petition has no merit and is dismissed. H.B.T./31/NIRC????????????????????????????????????????????????????????????????????????????????? Petition dismissed.