1994 PLP 470 (PLC)

Muhammad Asghar Malik for Respondent No.

3. Date of hearing: 2nd February, 1994. S. IJAZ‑UL‑HASSAN (SENIOR MEMBER).‑‑‑This appeal heard under subsection (4) of section 22‑B of IRO, 1969, in the absence of learned 3rd Member, is directed against the order of learned Chairman of the Commission dated 26‑10‑1993, whereby Petition No. 4A(655)/93‑L accompanied by a Stay Application No. 24(648)/93‑L of Divisional Accountant, Haji Faqir Muhammad, appellant herein, was dismissed for lack of jurisdiction.

2. Briefly stated the facts leading to the filing of this appeal are that a general order of transfer was passed by Director Accounts, Office of the Area Electricity Board, Multan, respondent No. 1 in this appeal, whereby the appellant posted in the office of Executive Engineer (OT) Okara, was directed to be transferred in the Office of Executive Engineer (P.R.E), Sahiwal in place of Abdul Majid Sandhu, respondent No. 3 herein, having received the transfer order, the appellant is stated to have resumed duty at Sahiwal. Thereafter, respondents Nos. 1 and 2 are alleged to have issued threats to the appellant that his transfer to sahiwal will be cancelled. Apprehending cancellation of transfer at the hands of respondents Nos. 1 and 2, the appellant filed a petition under section 22‑A (8)(g) of the IRO, 1969, alongwith an application under Regulation 32(2) of the NIRC (Procedure and Functions) Regulations, 1973, with the prayer that respondents Nos. 1 and 2 be directed not to commit acts of unfair labour practice and refrain from cancelling transfer order dated 12‑8‑1993. The learned Chairman of the Commission, seized of the matter, passed the following order on 23‑8‑1993: "Parawise comments may be called for 18‑9‑1993. Meanwhile if the petitioner's arrival report has been accepted, status quo shall be maintained."

3. Abdul Majid Sandhu, respondent No.3 herein, also brought a petition under section 22‑A(8)(g) of the IRO, 1969 accompanied by an application under Regulation 32(2) of the NIRC (Procedure and Functions) Regulations, 1973 challenging transfer order dated 12‑8‑1993. This petition and stay application were heard by the learned Chairman on 14‑10‑1993 and judgement was reserved. I may pause here to mention that the transfer order in question was held in abeyance, in the meanwhile, in view of the letter dated 23‑8‑1993 of the Secretary‑General of the Pakistan WAPDA Hydro Electric Central Labour Union, addressed to respondent No. 1, pointing out that in pursuance of a settlement between WAPDA and the CBA, office‑bearers of union could not be transferred during their tenure and in case such transfer was considered necessary in the interest of service, it should be done with the approval of next higher Authority. Respondent No. 3, on account of being a prominent member of the union, was stated immune from transfer. The learned Chairman after hearing the counsel for the parties, dismissed the petition of the appellant through the impugned order principally on the ground that Commission had no jurisdiction to entertain the petition. The connected petition of respondent No.3 was disposed of on the ground of having become infructuous.

4. While appearing on behalf of the appellant, Mr. Asmat Kamal Khan, Advocate assailed the validity and propriety of the impugned order and attempted to argue that the appellant had reported for duty on 21‑8‑1993 by relieving respondent No.3 and as such respondents Nos. 1 and 2 had no good reason to bow before the wishes of Secretary‑General of the Pakistan WAPDA Hydro Electric Central Labour Union and held the order in abeyance. The policy letter, regarding transfers and postings of WAPDA employees holding union offices, according to the learned counsel, being in direct conflict with the relevant provisions of section 15 of the Ordinance, should not have been taken into consideration and made basis for cancellation of the order in question. The order having been passed by a competent Authority and duly acted upon, could not have been rescinded. Reliance was placed on two cases reported in PLD 1969 Supreme Court 407 and PLD 1991 Supreme Court

973. The learned counsel also urged that the arguments were addressed and confined to stay application alone and the learned Chairman had no justification to dismiss the main petition as well alongwith the stay application, without recording evidence notwithstanding the fact that the arguments were restricted to stay application. The submission is without substance. Having found that the Commission was not competent to proceed with the matter and jurisdiction of the Commission was ousted, the learned Chairman was quite justified to decline to invite evidence of the parties. The omission has not resulted in defeating the ends of justice as rightly submitted on behalf of the respondents.

5. Having heard the arguments and submissions of learned counsel for the parties in the light of the material on the file, I feel that the impugned order is well‑reasoned and calls for no interference. The appellant in para. VII of his petition has admitted that he participates in no trade union activities. In view of this admission, I find that the learned Chairman was quite justified to dismiss the petition on the ground that no case of unfair labour practice had been made out and as such the Commission had no jurisdiction. The assumption of jurisdiction by the commission is dependent upon a prima facie case of unfair labour practice but the facts narrated in the petition do not constitute a case of unfair labour practice. The jurisdiction of the Commission is confined to the cases squarely falling within the scope of section 15 of IRO, 1969 and nothing beyond that. It implies that in cases of victimisation for any reason, other than the trade union activities, this commission will have no jurisdiction. In the petition no trade union activity whatsoever, has been mentioned to form the basis of the claim of unfair labour practice. The apprehended unfair labour practice has also not been specified with solid apprehensions. The petition does not fulfil the requirements of section 22‑A (8)(g) of the IRO, 1969. There is nothing to indicate that the appellant had been treated indiscriminately in respect of employment within the meaning of clause (c) of section 15 of the Ordinance. It is not denied that the discrimination, if any, must relate to the trade union activities of the person concerned in case he needs aid of the Commission in terms of section 15(c) of the Ordinance. 1988 PLC 923 and 1992 PLC 447 (National Industrial Relations Commission).

7. Adverting to the case‑law cited on behalf of the respondents concerning cancellation of transfer order, I find that the cited rulings speak of the different situation and are of no help to the appellant.

8. The appellant is stated to have come to the Court with unclean hands. He is shown to have concealed certain material facts, regarding cancellation of his transfer order etc. from the Court. In this respect, my attention has been invited to certain documents placed on the file on behalf of the respondents. A perusal of these documents would show that the appellant has not approached this forum with clean hands and as such he has been rightly refused the relief claimed for.

9. For the aforesaid reasons, finding no substance in this appeal dismiss the same and uphold the impugned order. H.B.T./210/N.I.R.C. Appeal dismissed.