1976 PLP 353 (PLC)

Akhtar Hussain for Respondent. This is an appeal against the order dated 5.12-1974 of Junior Labour Court No. 2, Lahore whereby the said learned Court accepted the application filed by Malik Mushtaq Ahmad respondent under section 15-A of the Industrial Relations Ordinance. 1969 hereinafter referred to as the I. R. O. against the Chairman, WAPDA, WAPDA House, Lahore and General Manager (Water) WAPDA, WAPDA House, Lahore.

2. Malik Mushtaq Ahmad respondent who joined the service in the Water Wing of the Head Office of WAPDA in 1969 as an Assistant was ordered to be transferred to the office of the Superintending Engineer, Surface Water, Hydrology, Lahore vide order dated 14-6-1974. He tiled an application under section 25-A of the I. R. O. before the learned lower Court seeking can cellation of the aforesaid order of his transfer and a direction to the effect that he might be posted in the Head Office in WAPDA House. He contended in his application that he was the Zonal Chairman of WAPDA People's Union Punjab and the General Secretary of WAPDA Workers Federation. He further contended that as an officer of the Federation and of the Union ha took active part in the Investigation in respect of a case of misappropriation of public funds to the tune of Rs. 8,00,000 regarding payment of honororia relating to Islamic Summit. On account of this the appellants got annoyed with him and as a measure of victimization be was ordered to be transferred to a Project Office although according to the rules of the service, he being an employee of the Head Office could not be transferred to a subordinate office. His transfer in the circumstances, according to him was in violation of sec tion 15 of the I. R. O.

3. The application of the respondent was opposed by the appellants who pleaded that the transfer of the respondent was ordered in due course and such a transfer could not legally be challenged under section 25-A of the I. R. O.

4. The respondent appeared as his own witness before the learned Court below while Mr. Khurshid Mustafa the Senior Superintendent of-, Establishment Section of WAPDA testified on behalf of the appellants. After considering the oral as well as documentary evidence produced by the parties the learned lower Court accepted the application of the respondent filed under section 25-A of the I. R. O. through the impugned order dated 5-12-1974.

5. The under consideration appeal has been filed in this Court on 21-12-1974. It has been contended by the respondent that the appeal was barred by time. It appears from the copy of the impugned order enclosed with the memorandum of appeal, as well as from the contents of the application filed by the appellants under section 5 of the Limitation Act that one day was spent by the appellants in obtaining the copy of the impugned order. Period of limitation provided for filing an appeal under section 36-D of the. I. R. O. is 15 days. The impugned order was announced on 5-12-1974. The present appeal was flied on 21-12-1974. The day of announcement of judg ment and the day on which the appeal bas been filed are not to be taken into consideration while computing 15 days period of limitation provided for filing of an appeal. In this manner the appeal is not time-barred. Even if A by any stretch of imagination it be deemed that the appeal is belated by one day. I would condone this delay keeping in view the time spent in obtaining the copy.

6. As regards the merits of the appeal, it is noteworthy that it is clearly provided in section 15 (d) of the I. R. O. that no employer shall transfer a workman by reason that the workman participates in promotion, formation or activities of a Trade Union. This is an admitted fact that the respondent is the Zonal Chairman of WAPDA Peoples Union, WAPDA House and is General Secretary of WAPDA Works Federation. He appearing as-his own witness stated that for the Islamic Summit the respondent paid honoraria to non-deserving persons. The respondent complained against it. An enquiry followed. He has produced Exh. P. A. a letter addressed by him in this behalf to the Minister for Fuel, Power and Natural Resources. Government of Pakistan, Islamabad. On this letter there is an endorsement by the Minister that he wanted a thorough enquiry into the allegation contained in the application presented by representative of the WAPDA Works Federation, The respondent has further stated that a probe was conducted by the Deputy Secretary of the concerned Division. No final decision in the matter of course has yet been taken but on account of this grievance he has been trans ferred to a subordinate office, although being an employee of the Head Office he could not be transferred to a subordinates office. He has also stated that his entry in the WAPDA House has been banned.

7. In rebuttal, as stated earlier one Mr. Khurshid Mustafa Senior Superintendent of Establishment Section of WAPDA has appeared before the Junior Labour Court. This witness has not uttered a single word to rebut the allegation of the respondent that he was transferred on account of his Trade Union activities. This witness rather admitted that the respondent was transferred from the Head Office to a Project Office which was subordinate office and according to the relevant service rules an employee of Head Office could not be transferred to a subordinate office. He his also admitted that the respondent was an active officer of Trade Union. The respondent has produced Annexure R. C. a copy of the letter dated 30-9-1970 issued by General Manager, Water, WAPDA House, Lahore and to all General Manager/C. Es. Water Wing, WAPDA. According to the contents of this letter an instruction has been issued to the effect that the staff appointed/ working against the posts of Head Offices would not be transferred to Projects and vice versa. It may he true that this letter merely contains administrative instruction and does not tantamount to statutory rules/regulations. In the circumstances, breach of instruction contained in this letter may not be considered as a breach of right guaranteed under any law. The fact however remains that according to the unrebutted evidence on the record of the car transfer of the respondent has been ordered as a measure of victimization on account of his Trade Union activities, inasmuch as, he being an officer of a Union and the WAPDA Workers Federation complained to the Ministry concerned about misappropriation of funds in connection with payment of honoraria after the Islamic Summit and the Minister concerned was pleased to order holding of an enquiry on his complaint. We cannot also lose sigh of the fact that the respondent being an employee of the Head Office has bee transferred to subordinate (Project) Office in disregard of the administrative instructions contained in letter dated 10-9-1970. Such a transfer is certainly prohibited by section 15 of the I. R. O. Findings recorded in this behalf by the learned lower Court are therefore maintainable.

8. I would accordingly uphold the impugned order and dismiss the appeal with this modification that the appellants would be at liberty to post the respondent in any of their establishments of the Head Office located at Shadman Colony, Sunny View, Gulberg and WAPDA House etc.