2001 PLP 296 (PLC)

5. Learned counsel for the respondents has contended that NIRC is a forum of limited jurisdiction which deals with the cases of workmen based on the allegations of unfair labour practice and its functioning is regulated by N.I.R.C. (Procedure and Functions) Regulations, 1973. Submission of the learned counsel is that the impugned transfer order has been passed in the exigency of service and not because of the so‑called trade union activities of the petitioner and as such, the case of the petitioner does not fall within the ambit of the provisions invoked by him as to attract the jurisdiction of this Commission as it is not a case of unfair labour practice. It is further contended by the learned counsel that the order having already been passed which the petitioner has assailed before this Commission, its operation could not be suspended as on the petitioner's own showing, unfair labour practice, if any, had already occurred. In support of his submission learned counsel has placed reliance on an unreported judgment of the Lahore High Court, dated 4‑3‑1996 passed in Writ Petition No.8860 of 1995 wherein, following Divisional Bench Judgment of Karachi High Court in the case of Allied Bank of Pakistan and 3 others v. Chairman, N.I.R.C‑. and 4 others (1984 PLC 1342), it has been held that the order of transfer having already been issued, its operation cannot be suspended "without a positive finding that his order was the result of unfair labour practice ." Learned counsel for the respondents has also relied upon the case reported as 1994 PLC 280 and submitted that in the absence of details of specific allegations of unfair labour practice, jurisdiction of NIRC was not attracted. Learned counsel vehemently contended that it has not been shown by the petitioner as to what kind of trade union activities were going on at Lahore at the relevant time in which he was participating and the impugned transfer order has been passed to prevent him from participating in those activities. Learned counsel has submitted that neither any referendum is in the offing for purpose of determining the CBA nor is it the case of the petitioner that the elections of Air League were going to be held. Learned counsel for the respondents has repelled the contention of the petitioner that his transfer was motivated by his trade union activities. His submission is that the impugned transfer order was passed to meet the administrative requirements of the respondent Corporation and it has nothing to do with the so‑called trade union activities of the petitioner. According to the learned counsel, petitioner has not been performing his duties efficiently and honestly. It has been pointed out by the learned counsel that during four years' period of his service, the petitioner has been involved in numerous acts of corruption and misconduct and his transfer has thus become imperative for smooth running of the respondent -Corporation and to rehabilitate its image. Learned counsel has drawn my attention to para. 1 of the reply filed on behalf of the respondents wherein details of the show‑cause notices issued, punishments awarded and the warnings administered to the petitioner from time to time have been given as follows:‑‑-- (i) Petitioner was issued show‑cause notice on 15‑2‑1999 on the charge of illegally receiving an amount of Rs.960 from a passenger travelling from Lahore to Karachi; and (ii) was awarded punishment of fine on 14‑7‑1999 for the aforesaid misconduct. (iii) He was issued another show‑cause notice on 26‑3‑1999 for having received illegal gratification of Rs.23,000 from a passenger for up grading him from Economy to Business Plus Class on the Sector Lahore New York which amount he did not deposit with the PIA; and (iv) he was issued a letter of advice, dated 13‑3‑2000 in respect of the misconduct forming the basis of the abovementioned show‑cause notice; dated 26‑3‑1999. (v) He was issued a letter of caution on 31‑8‑1999 on account of miss‑handling two passengers travelling on Lahore‑Multan Sector by PK 387 on 15‑1‑1999. (vi) He was also found involved in various Security violations and it was alleged that he had links with some passengers who travelled abroad and bring liquor for him. In this connection, letters; dated 31‑3‑2000 and 13‑4‑2000 were issued by Chief Security Officer, Lahore Airport Security Force, to Security Manager, PIA. (vii) He was also issued show‑cause notice, dated 9‑6‑2000 on account of charging an amount of Rs.17,800 from a passenger in respect of excess baggage out of which he deposited only Rs.14,000 with the PIA and misappropriated Rs.3,

800. This case is stated to be still pending and is being inquired into.

6. Learned counsel for the respondents has pointed out that the aforementioned acts of misconduct/corruption highlighted in the respondents' reply have not been specifically denied by the petitioner in. his rejoinder and he has rather admitted the same by stating that the details of the allegations referred to above are "totally irrelevant and have no nexus with the petitioner's transfer order". Learned counsel for the petitioner has sought to explain that the cases of misconduct referred to in the reply of the respondents are irrelevant for the reason that the proceedings initiated against the petitioner have already culminated in some orders except one case mentioned in para. 1(g) of the reply. He has made a grievance with reference to ground (d) of the petitioner's rejoinder that the incident (presumably the charge which is being inquired into) which took place seven months back has been reopened with a view to punish the petitioner. Be that as it may, the fact remains that the instances of misconduct/corruption of the petitioner quoted by the respondents in their reply have not been denied as such by the petitioner. Learned counsel for the respondents has argued that in view of afore‑noted misconduct of the petitioners, he cannot be heard to make a grievance that his transfer is an act of unfair labour practice. Learned counsel has referred to case reported as 1986 PLC 365 wherein the transfer of an office‑bearer of a trade union impugned therein was held to be justified as there were allegations of corruption against him.

7. I have given my anxious consideration to the submission made by the learned counsel for the parties. Law by now is fairly well‑settled that before granting interim relief, the Court or the Tribunal must satisfy itself whether there exists any prima facie case in favour of the person seeking the interim relief, and it must also examine' the concepts of convenience/inconvenience of the parties and irreparable loss likely to be suffered by the petitioner in case of refusal to grant the interim relief. In a case like the present one which is based on the allegations of unfair labour practice, it has to be seen whether the allegations made by the petitioner coupled with other material available on the record, prima facie, disclose the commission of any unfair labour practice on the part of the employer because on such a finding depends the exercise of jurisdiction of this Commission. On perusal of the record, I find that the case of the petitioner rests on bald allegation that his transfer is the result of the trade union activities which he allegedly performed as an office‑bearer of the CBA Union. No details whatsoever have been given of any trade union activities carried on by the petitioner. The petitioner has simply alleged that he was an active Member/Joint Secretary of the CBA Union and being an active office‑bearer of the union, he was quite often involved in the negotiations with the Management on behalf of his fellow union members. It may pertinently be observed that he has not given any details of such negotiations nor has he disclosed the nature and level of the negotiations, that is to say nothing has been brought on record to show in respect of which dispute/demands, the negotiations were held and when and where the negotiations took place and with what result. He has not cared to place on record any material such as copy of the minutes of any meeting held for negotiations in which he allegedly participated. In the absence of these relevant details, the version of the petitioner that he was an active trade unionist or that he participated in the negotiations with the management cannot be readily accepted, Assuming, however, that the petitioner was involved in any negotiations with the management as contended by him, this could, hardly be a reason for transferring him. The plea of the petitioner that his transfer has been ordered because he used to take part in the negotiations with the management on behalf of his fellow union Members does not prima facie, appeal to reason. Petitioner is not shown to have indulged in any such activities which could possibly have annoyed/offended the management so much that they would transfer him as a measure of punishment. Similarly, there does not appear to be much substance in the allegation of the petitioner that the impugned transfer was intended to prevent him from performing his trade union activities as it has not been shown nor even alleged that any referendum was in the offing for the purpose of determining the CBA in the establishment of PIA or the elections of the petitioner's union are scheduled to be held in the near future. Even otherwise, on the petitioner's own showing, he is only a nominated Joint Secretary. Traffic Wing and it is not his case that any of the principal office‑bearers of the union like President and General Secretary have been transferred from Lahore. It may be noted at this ‑stage that the respondents have referred to numerous acts of corruption/misconduct on the part of the petitioner which he has not specifically denied and it has been contended by the learned counsel for the respondents that in view of these acts of misconduct, transfer of the petitioner has become imperative for smooth and clean functioning of the respondent Corporation and to rehabilitate its image. It is true that in the impugned order of transfer, the misconduct/corruption of petitioner has not been indicated as the reason for his transfer but possibility cannot altogether‑ be ruled out that this may have been the cause of his transfer.

8. As discussed above, on minute examination of the pleadings of the parties and their respective versions, I am not quite satisfied for the present that there exists any prima facie case of the commission of unfair labour practice in favour of the petitioner as it cannot be said on the present record and the attending circumstances that the impugned transfer of the petitioner was motivated only by his trade union activities, or that it was intended to prevent him from performing his trade union activities at Lahore, particularly when it has not even been alleged in the petition that any referendum for CBA or the elections of the petitioner's union are scheduled to be held in near future or that any charter of demands has been submitted by the CBA Union in which the negotiations are in progress wherein the petitioner was participating or his participation is absolutely necessary. For all these reasons I am of the view that there does not exist prima facie case of commission of any unfair labour practice. Balance of convenience also does not seem to lie in favour of the petitioner in so far as it is the term and condition of his employment that he can be posted anywhere in Pakistan, and it is also an accepted proposition that it is the inherent right of the employer to transfer his employee from one place to another keeping in view his own administrative requirements. Ordinarily, an employee cannot make legitimate grievance against his transfer. Needless to observe that merely because the petitioner happens to be an office‑bearer of the CBA Union does not mean that he cannot be transferred from one station to the other particularly when he has remained posted in Lahore ever since his appointment in the year 1996. Law is not fairly well‑settled that the transfer of an office‑bearer of a union per se does not constitute unfair labour practice. In order to show that his transfer is an act of unfair labour practice, the petitioner should have placed on record some material in support of his contention which he has failed to do. It can also not be reasonably contended that the petitioner will suffer any irreparable loss and injury if the interim relief sought by him is not granted and the impugned transfer order is implemented. On the contrary, if the operation of the impugned transfer order is suspended, it will hamper and prejudice the administrative functioning of the respondents as they will have to retain the petitioner at Lahore against their will.

8. Having held that none of the necessary ingredients/legal requirements governing the grant of interim relief exists in the present case, it is not necessary to go into other questions raised by the learned counsel for the parties. Upshot of the above discussion is that the petitioner having failed to make out any prima facie case of unfair labour practice and other necessary ingredients of balance of convenience/inconvenience and likelihood of irreparable loss also not being in his favour, I find no merit in this application for the grant of interim relief which is hereby dismissed and the interim order issued on 21‑6‑2000 is recalled. Main petition shall come up for further proceedings on a date to be fixed by the office. H.B.T./30/NIRC Application dismissed.