1994 PLP 280 (PLC)

(2) Whether the petition is not maintainable? (3) Whether the petitioner has not come with clean hands? (4) Whether the impugned orders of transfer and relieving stood already implemented before 27‑8‑1992 and the petition is incompetent and infructuous? (5) Whether the allegations levelled in the petition are correct and do they constitute unfair labour practice? (6) Relief. In evidence, the petitioner appeared as P.W.2 and produced Qari Abdul Rahim Imam Masjid as P.W.1. This witness stated that the petitioner was enjoying good reputation in the locality and that his transfer was ordered with a view to keep him away from the union activities. He also stated that the, petitioner was victimized at the behest of the rival union. As against this, Ch. Mumtaz Akhtar, Executive Engineer and Nasir Ullah Khan Lodhi, Sub- Divisional Officer, Chashma Barrage were examined as R.W.1 and R.W.2 respectively on behalf of the authority. Ch. Mumtaz Akhtar R.W.1 stated that upon receipt of a complaint against the petitioner an Inquiry Committee was constituted and the petitioner having been found guilty of immoral conduct, was dismissed from service. Subsequently he was reinstated and a fresh inquiry was ordered to probe into the matter. Nasir Ullah Khan Lodhi R.W.2 stated that there were several complaints against the petitioner and that the general reputation of the petitioner was doubtful. He also stated that the petitioner was accused of having trespassed into the house of a Beldar situate in WAPDA colony in order to disgrace the wife of the Beldar and that the petitioner was also having illicit intimacy with a sweepress working in the colony and she was found present in the quarter of the petitioner. This witness further added that the transfer of the petitioner was made due to his immoral activities and it involved no element of unfair labour practice. Appearing on behalf of the petitioner, Malik Ghulam Rasul Advocate attempted to argue that this was not a simple case of transfer necessitated by administrative reasons and departmental requirements but the transfer has to be viewed in the background of union activities of the petitioner. The learned counsel contended that the petitioner had been championing the cause of his co‑workers and ventilating their grievances from time to time, which caused annoyance to the authority which ultimately resulted in his unjust and illegal transfer to a far‑flung area. The transfer, according to the learned counsel, was ordered not in the interest of the Authority but at the instance of the rival union. The petitioner was also stated to have been discriminated qua several employees who were stated to have more than 20 years stay at a station of their choice. On the contrary, Mr. Muhammad Iqbal Khokhar, learned counsel for the authority submitted that the transfer in question was ordered to view of the complaints received against the petitioner and that it had no relevance with his union activities. . Having heard the arguments of learned counsel for the parties with reference to the material on the file, my findings on the issues are as under:‑‑ Issue Nos.l, 2 and 5 being interconnected, are disposed of together for convenience sake. In the instant case, I find that after more than ten years stay at Chashma Barrage Kundian, the petitioner has been transferred to Muzaffarabad and the transfer has been made in view of the complaints received against the petitioner from the inmates of the colony, regarding his immoral activities. The petitioner was found having tried to trespass into the house of a Beldar, situate in the colony with the sinister purpose to disgrace the wife of the Beldar. But he failed in his nefarious designs. The petitioner was also suspected of having developed illicit connections with a sweepress of the colony. The sweepress was found indulging in immoral activities with the petitioner in his quarter. On receipts of various complaints, an Inquiry Committee, comprising three members including R.W.1, was constituted to probe into the matter. The petitioner having been found guilty by the Inquiry Committee, was dismissed from service but on appeal he was reinstated and a fresh inquiry was ordered, These facts have come through the depositions of R.W.1 and R.W.2. Both these witnesses are independent and impartial witnesses. They were subjected to the test of cross‑examination to show that they had personal enmity with the petitioner which motivated them to depose against him, but nothing material could be elicited. I see no good reason to disbelieve these witnesses and accept the statements of the petitioner and Qari Abdul Rahim. It is true that Qari Abdul Rahim is Hafz‑e‑Qur'an and he is also Imam Maslid of the Colony Mosque, but it is equally true that he appears to have gone out of the way in supporting the petitioner. I am not prepared to accept his testimony. In the circumstances, I find myself in agreement with the learned counsel for Authority that the impugned order was made for no other reason but due to objectionable activities of the petitioners. There is nothing to show that the rival union was instrumental in the transfer of the petitioner. There is also nothing to show that certain employees had more than 20 years stay at the places of their choice but the petitioner was discriminated. The transfer of the petitioner, cannot be said to be an act of unfair labour practice under the relevant provisions of the IRO, 1969. Even if it is admitted that the respondents have transferred the petitioner to curb his union activities, even in that case, the petitioner is required to show that the respondents had done so, for the reasons that the petitioner is, or proposes to become or seeks to persuade any other person to become a member or officer of a trade union or participating in the promotion, formation or activities of trade union. There being nothing on the file in support of the allegation of the petitioner, the respondents cannot be blamed for having committed unfair labour practice. I may pause here to mention that the petitioner claims to have been victimized on account of being President, WAPDA Employees Union (Regd.) The assertions of the petition is incorrect. It is evident from the record that the information regarding election of the petitioner as President was received by the Authority vide Annexure R‑6 dated 30‑8‑1992 whereas the transfer order is dated 23‑8‑1992 and the Relieving Order is dated 27‑8‑1992. It shows that the impugned order had already been made before the aforesaid information was received. In view of what has gone above it follows that the petitioner has not been able to prove that his transfer was ordered with a view to keep him away from the union activities. Victimization, as held time and again, is a serious charge and it has to be established by cogent and reliable evidence. In the absence of any supporting material to show that the transfer was ordered by way of victimization, I am unable to agree that by the transfer itself a case of unfair labour practice had been made out. Further, it is not denied that holding an office of trade union absolves the holder from transfer. Issues Nos.1, 2 and 5 are decided accordingly. Issue No.4 not pressed. Relief : Since the transfer is found to have no connection with trade union activities of the petitioner, the petition based on allegations of unfair labour practice under section 22‑A(8)(g) of the IRO of 1969 is not maintainable. Both the main petitions as well as Miscellaneous application are hereby dismissed. H.B.T./203/NIRC Petition dismissed.