1984 PLP 1595 (PLC)

8. In the parawise comments the learned counsel for the respondent raised preliminary objections to the effect that the petition is not maintainable under section 22‑A (8) (g) read with section 15 (1) (d) of the

1. R. O. as it did not specifically disclose commission of any unfair labour practice or violation of any right guaranteed or secured to the petitioner by or under any law, award or settlement. It was further submitted that the right to transfer an employee from one place of employer's business to another is not only inherent but also specifically provided in the contract of employment between the parties, and that the petition tantamounted to abuse of the process of the Honourable Commission It was submitted that the petitioner was initially appointed as Sub‑Editor "Imroze", Karachi in March, 1956 and he worked at Dacca and Lahore. He was last posted as Bureau Chief I Senior Reporter) Pakistan Times at Karachi. It was denied that his removal from service on 16th May, 1978 was an act of victimisation as the question of legality' of the said termination order, dated 16th May, 1978 is sub judice before the High Court.

9. The respondents denied that the petitioner presented himself for duty after his reinstatement at any day earlier than 5th of May, 1985. It was submitted that by order, dated 13th January, 1932 the petitioner's right to present himself for and perform duties was independent of any invitation or office order of the respondents. The applicant, during the period in tervening his removal from service and joining duty was gainfully employed in a newspaper. The respondents denied that any person was appointed as Bureau Chief of Karachi Bureau after the petitioner's removal from service in 1978 or that despatches sent by the petitioner were indifferently or improperly treated. It was submitted that the Pakistan Times Bureau at Kalat was sanctioned by the Chairman of the National Press Trust vide his order, dated 7th of April, 1984 and that the creation of this Bureau was necessitated by the political importance of the Province of Baluchistan as it was politically sensitive areas of special interest for foreign journal lists. In the respondents judgment the petitioner was better suited its Bureau Chief at Kalat than any other employee and that this was the backdrop in which the petitioner's transfer was ordered.

10. The respondents denied that Mr. Iqbal Mirza has ever been a Bureau Chief as he is a Staff Correspondent. He submitted that the trans fer was ordered by an authority competent in law to do so and that the right to transfer is inherent in the respondent and also forms part of the contract of employment to which the petitioner was a party. It was cate gorically denied by the respondent that the transfer order had anything to do with any alleged trade Union activities on the part of the respondents and that the petitioner will have enough work and place of work at Kalat and will be entitled to wages and such other expenses as may be provided in the law and the rules of the respondent‑Company. The respondent further sub mitted that it was settled that allegations of mala fide are to be pleaded with particularity and that a Court, tribunal or the commission, cannot conduct proving enquiry and fish out a case of mala fide on vague allegations.

11. As both the learned counsel agreed that the question of maintain ability of the case should be decided first, I heard the arguments on this aspect only.

12. The learned counsel for the petitioner argued that the Chief Executive had issued the order of transfer of the applicant to Kalat on 27th May, 1984 i. a 22 days after his reinstatement and also stated that the charge at Karachi shall be deemed to have been relinquished on 29th May, 1984 the day on which the order was received by the applicant. The appli cant was also transferred to Kalat which was a mala fide action and amount ed to victimisation although the respondents say that it was in the best interest of the organisation. He did not agree with the learned counsel for the respondent that the Province of Baluchistan was such an important Province that it required two Bureaus. He argued that there was no justifi cation for Bureau at Kalat. He stated that if at all there was any justifica tion for setting up another Bureau, it could have been at Peshawar which is visited by foreign dignitaries and the Frontier Province should have at least 3 Bureaus. He also rejected the arguments of the learned counsel for the respondents that a foreign journalist had written a book on Baluchistan and submitted that many books had been written on the different aspects of life in the country. He stated that there was nothing at Kalat. There was no building, no offices and no news item ever appeared from Kalat. He there fore stated that the case was covered under section 15 of the

1. R. O. 1969 and that a prima facie case of unfair labour practice is made out against the respondents.

13. The learned counsel for the respondent submitted that the peti tioner has failed to establish that he was entitled under the law to invoke the jurisdiction of the Commission under section 22‑A(8)(g) read with sec tion 15 of the I. R, O., 1969. He submitted that the petitioner has nowhere mentioned that he is a member of a Union nor has he alleged that the transfer had any nexus with the unfair labour practice. He has failed to con tend and prove the jurisdictional facts which are sine qua non either for in voking the jurisdiction of the Commission or for assumption of jurisdiction by the Commission. He referred to sub‑clauses (i) and (ii) of section 15 (1)(d) of the I. R. O. and submitted that trade Union should necessarily be registered Trade Union but the petitioner has nowhere alleged that he is a member of such a Trade Union nor has he disclosed its name or any activities as member of the Union.

14. I do not agree with the contention of the learned counsel that the Union must necessarily be a registered Union as the law itself provides in section 2 that a registered Trade Union means a trade Union registered under the Ordinance.

15. The learned counsel for the respondent further argued that the applicant has given background of the case and has stated about his associa tion with the Union in the past tense and this Union is not registered Trade Union. He stated that the Unions are meant for the welfare of workers and not for championing the cause of democracy by demanding freedom of expression in general and the Press in particular.

16. He cited case law reported in 1978 P L C 526 at page 531‑A where in it was held that trade Union activities do not mean that its office‑bearers should indulge in political activities or launch any movement for the removal of any lawfully established Government as the Trade Union activi ties are meant only for the welfare of workers. He submitted that the jurisdiction of the Commission depended upon existence of some particular facts and that the Commission could not be a wrong decision with regard to it give itself jurisdiction which it would not otherwise possess. He cited case law reported in P L D 1974 S C 193, 1970 S C M R 158, P L D 1971 S C 124, P L D 1980 Quetta

1. He submitted that the manage ment had the right to transfer any employee whom they considered fit for appointment at the project and that this right of the management is inherent and in this connection he cited law reported in 1981 P L C 287.

17. He further submitted that mere general allegations do no prove victimisation and or proving victimisation on the employers part some or all the grounds stated in section 15 must be alleged and proved. He cited case law reported in 1975 P L C 156 and P L D 1974 S C 151, in which it was held that mala fide is one of the most difficult things to prove and that the onus is entirely on the person alleging mala fides to establish it and that the action cannot be challenged upon a vague allegation of mala fides. It was held that the mala fides must be pleaded with particularity. He referred to clause (3) of the appointment letter, dated 4th December. 1963 in which the management reserved the right to assign his service to any of its units and transfer his services to any other place of its business without any extra remuneration. He submitted that the applicant cannot refuse to accept his transfer to any place in Pakistan. He further submitted that from Annexure `K' of the report submitted by the petitioner it is impliedly proved that he had relinquished the charge and had resumed the charge after the issue of stay order by this Court. He submitted that once the charge has been relinquished the Commission could not issue any stay order. He further cited case‑law reported in 1975 P L C 156 and stated that the petitioner has miserably failed to even allege jurisdictional facts. In view of these facts he submitted that the petition was not maintainable and it should be dismissed.

18. The learned counsel for the petitioner asserted that the petitioner bad not relinquished the charge and that according to the report submitted by the petitioner it cannot be inferred that he had relinquished the charge. He referred to clause (d) of section 15(1) of the I. R. O., 1969 and submitted that the petitioner had been promoting and participating in the formation of Trade Unions and that the fact that he was a member of the P. F. U. J. and A. P. N. E. C. does not in any way imply that he was talking of the past and submitted that these Trade Unions are still existing. He submitted that in paras. 3 and 21 of the petition the jurisdictional facts have been alleged and that further pleadings and evidence could prove that an unfair labour practice has been committed by the respondents. He submitted that under section 22‑A(8)(g) the Commission could assume jurisdiction to deal with cases of unfair labour practice, and take in such manner as may be prescribed under the N. I. R. C. (Procedure and Functions) Regulations, 1973, measures calculated to prevent an employer or workmen from com mitting an unfair labour practice. He submitted that the Commission was empowered under Regulation 32(2) to issue prohibitory order as the charge has not been relinquished by the petitioner as according to him the act of completion of the charge could only be finalised when the petitioner joins at Kalat. The petitioner was given 7 days joining period which shows mala fides on the part of the respondent. The petitioner however came to the commission within 7 days and got stay order. The registration or non‑registration of a Union does not have any effect on the case file under section 15 of the

1. R. O., 1969.

19. The learned counsel for the petitioner referred to allegations of unfair labour, practice made by the petitioner in his earlier complaint filed before the Commission and on which the learned Chairman of the N. I. R. C. had given his decision reinstating the petitioner. The learned counsel for the respondent submitted that the allegations referred to in the complaint filed earlier by the petitioner cannot be taken into consideration as an appeal was filed by the respondents on the order of the learned Chairman and after rejection of the appeal by the Full Bench, the respon dents had filed a writ petition in the High Court. Since that writ petition is still pending in the High Court any discussion on that matter might constitute a contempt of the Court.

20. I have heard both the learned counsel. The application has been submitted under section 22‑Afg) read with section 15(1)(d) of the Industrial Relations Ordinance, 1969. Para. 3 of the application states that the applicant is a staunch Trade Union worker in the newspaper industry arid has held important offices in the Pakistan Federal Union of Journalists and All Pakistan Newspapers Employees Confederation and has been struggling for the solidarity rights and interests of the workers employed in the industry and also championing the cause of democracy by demanding freedom of expression in general and of the Press in particular. This appli cation has been submitted on 3rd June, 1984 and the applicant had sub mitted that he was reinstated on 5th May, 1984. It has been submitted that towards the end of year 1978 the applicant was raising voice and organising and mobilising the workers against the curbs which had incurred displeasure of the authorities and the Executives of the respondents result ing in termination of employment as a measure of victimisation. In both these paras. 3 and 4 nowhere any act of unfair labour practice on the part of the management has been alleged. The relevant line in both these paras. only relates to the rights and interest of workers employed in the industry. The appellant had submitted an application after his termination as Bureau Chief and in that application he had alleged acts of the unfair labour practice and the Commission had reinstated him in service. That case is still pending in the High Court and the applicant cannot import the allega tions made in that complaint in the present case. He was reinstated on 5th May, 1984 and he should have alleged acts of unfair labour practice specifically after his reinstatement on 5th May, 1984 till 27th May, 1984. On examining the application in detail it would be observed that the appli cant had referred to the various communications addressed to the respon dents and the reply received from him and on going through this correspon dence, nowhere any act of unfair labour practice on the part of the respon dents is made out.

21. After his reinstatement on 5th May, 1984 the applicant submitted that he addressed a letter, dated 21st May, 1984 to the Chief Editor and in that letter he had mentioned that there have been appointed three persons in succession as Bureau Chief in Karachi Office after removal of the applicant in 1978 and also complained in general about improper treatment of his despatches and news and stories. This by itself does not constitute as unfair labour practice on the part of the respondent. It has also been denied by the learned counsel that there have been any Bureau Chief at Karachi as there were Press Correspondents and not Bureau at Karachi. The learned counsel for the respondents also enclosed a number of despatches sent by the applicant which have been given coverage in the newspapers.

22. The applicant has further submitted that he has been transferred to Kalat vide letter, dated 27th May, 1984 and received by him on 29th May, 1984. He has actually made this petition under clause (d) of subsection (1) of section 15 which is reproduced as under : ‑‑‑ "15(1)(d) dismiss, discharge, remove from employment or transfer or threaten to dismiss, discharge or remove from employment or transfer a workman or injure or threaten to injure him in respect of his employment by reason that the workmen. (i) is or proposes to become or seeks to persuade any other person to become a member or officer of a Trade Union, or (ii) participates in the promotion, formation or activities of a Trade Union." The plain reading of this clause in respect of transfer would mean that an employer cannot transfer a workman by reason that the workman is a Member or Officer bf a Trade Union or participates in the promotion, formation or, activities of a Trade Union. This however does not imply that all employees in case they happen to be members or office‑bearers of a Trade Union cannot be transferred under any circumstances and if anyone o them is transferred the employer shall be violating the provisions of clause (d) of subsection (1) of section 15 of I. R. O., 1969. In fact all the establishments, majority of the employees, if not all, are members and office bearers of Trade Unions and this does not give a licence to the office‑bearers and members of the Union that they cannot be transferred from one place to another or from one section to another. If it happens the entire working of the organisation having establishments in a number of cities or places can be seriously dislocated. This does not seem to be intention of the law as in every establishment the employer has to carry out routine transfer of their workers from one section to another and in bigger establishments like Railways, WAPDA, T & T and Commercial Banks, large number of workers are transferred not only from one section to other section but also from one city to another city in the interest of smooth working of the establishment.

23. In order to establish case of unfair labour practice the ingredients of subsection (i) and (ii) and clause (d) of subsection (1). of section 15 of I. R. O., 1969 are that the employer stops or induces the workmen not to become a member of a Trade Union or to stop a workman to seek to per suade any other person to become a member or officer of a Trade Union. Similarly he should allege that the employer stops a workman from partici pating in the promotion, formation or activities of a Trade Union. In order to prove this the complainant should allege any event or series of events to L) prove that the employer had stopped him from becoming a member or officer of a Trade Union or had stopped him from participating in the pro motion, formation or activities of a Trade Union.

24. The applicant has nowhere alleged in the application that the respondents had stopped him from participating in the promotion, forma tion or activities of the P. F. U‑ J. or the A. P. N. E. C. The learned counsel E for the respondents has therefore correctly argued the complainant has failed to prove the jurisdictional facts which are sine qua non either for invoking the jurisdiction of the Commission or assumption of jurisdiction by the Commission. In a number of reported cases the various Courts have held that transfer is not an act of victimisation. I find that in clause (3) of the Appointment order, dated 4th December, 1963 the peti tioner was appointed on the terms and conditions that the Management reserved the right to assign his services to any of its units and transfer his services to any other place of its business without any extra remuneration I In view of this clause, the transfer cannot be termed as an act of victimization. It has been submitted by the applicant that there was no office of the Pakistan Times in Kalat. This was however an administrative matter, which could have been discussed by the petitioner with the respondents and it has got nothing to do with an act of unfair labour practice.

25. The petitioner has therefore, failed to make out any case of unfair labour practice against the respondent and I dismiss the petition and recall he stay order issued by me on 3rd June, 1984. Petition dismissed.