2016 PLP 532 (PLC)

MUHAMMAD IQBAL MAHAR, J.

By this common Order we propose to dispose of above captioned petitions filed by Shafi-ud-Din and four others v. National Industrial Commission and others and Gerry's Dnata Workers Union (CBA) v. National Industrial Relations Commission and others. The petitioners have challenged the order dated 6.8.2015 passed by NIRC Full Bench at Karachi whereby the order dated 31.7.2015 passed by learned Single Member NIRC Karachi dismissing the stay application as well as the main case filed by the petitioners was maintained.

2. Relevant facts leading to the instant petitions are that the petitioners are employed in the establishment of respondents Nos.3 and

4. They are members/office bearers of Gerry's Dnata Workers Union (CBA) and they are actively engaged in trade Union activities for maintaining a congenial working environment with the Respondent company and conducive for both the employer as well as the workers. The Petitioner's Union CBA raised an industrial dispute and submitted charter of demands for year 2013-2015 to the establishment but the respondents did not resolve it and during the pendency of conciliation proceedings, the establishment started victimization of the members/office bearers and issued transfer letters in order to crush the Trade union activities which amounts to unfair labour practice and also violation of Section 31 of the Industrial Relations Act, 2012. The petitioners filed petitions under section 54 read with 31 of the Industrial Relations Act, 2012 before learned Single Member, National Industrial Relations Commission (NRIC) with following prayer: "this honourable Commission may graciously be pleased to direct the respondents not to commit any act of unfair labour practice and not to cause injury to the employment of the petitioners in any manner whatsoever by way of dismissal, discharge, removal, termination and transfer etc. and it is also prayed to set aside the impugned transfer letter dated 3.3.2014 issued to the petitioner No.7 having been based upon unfair labour practice and contrary to the respective laws."

3. In response to the notice the respondent-establishment filed their comments and counter affidavit in which they refuted the claim of the petitioners.

4. The learned Single Member National Industrial Relations Commission (NIRC) Karachi after hearing the parties dismissed the stay applications as well as main petitions. The petitioners approached the learned Full Bench National Industrial Relations Commission (NIRC) but the appeals were dismissed with the observation that NIRC does not ordinarily interfere in the matters of transfer or micromanage the affairs of an organization as the employer has inherent right to transfer any of its employees.

5. The learned counsel for the petitioners contended that the impugned order dated 6.8.2015 passed by learned Full Bench NIRC and order dated 31.7.2015 passed by learned Single Member NIRC are illegal, unjustified and are not sustainable under the law. He further contended that the respondent No.4 transferred the petitioner No. 5 from Karachi to Peshawar vide order dated 3.5.2014, available at page 137, which comes within the ambit of unfair labour practice and is in violation of section 31 of Industrial Relations Act, 2012. He also contended that the law provides protection to the Union and its members/office bearers all the time against the acts of unfair labour practice but unfortunately the learned Single Member and the learned Full Bench NIRC totally ignored and refused to act according to the facts and law and wrongly relied upon the assertions of employer. He also contended that the Learned Single Member NIRC while deciding stay application dismissed the main petition of the petitioners without recording the evidence of the parties. In support of his arguments he has relied upon PLD 1988 SC 416, 2005 SCMR 100, 1972 SCMR 395 and 2013 SCMR 13.

6. On the other hand, the learned counsel for the respondents Nos.3 and 4 submitted that the orders passed by the learned Single Member as well as by learned Full Bench NIRC are legal, lawful and in accordance with law. He further submitted that the management of Gerry's Dnata (Pvt.) Ltd. has rightly transferred the petitioners as the transfer was under the terms and conditions of their employment and that the petition before learned Single Member NIRC under the garb of unfair labour practice was not maintainable and the learned Single Member NIRC had no jurisdiction to entertain all kinds of grievance petitions not relating to unfair labour practice. He further submitted that the allegations levelled in petition before learned Single Member NIRC were bald, vague and general in nature and it is settled law that mere leveling false allegations of unfair labour practice would not create cause to file the petitions. He also submitted that petitioner Allah Dad was surplus to the requirement of the respondent Management at Jinnah International Air Port, Karachi and his services were required at Peshawar international Air Port due to company's operational requirement hence he was transferred in accordance with the terms of appointment letter. He also submitted that the respondent management had filed statement before learned Full Bench NIRC that all the petitioners had complied with the transfer orders and had resumed their duties at their respective postings at Multan, Islamabad and Quetta Airports respectively. He further submitted that since the petitioners have levelled false allegations therefore recording of evidence by learned Single Member NIRC was not necessary. He lastly submitted that the learned Single Member and Full Bench have given concurrent findings against the petitioners hence same cannot be disturbed in constitutional jurisdiction by this Court, therefore, he prayed for dismissal of above constitutional petitions in support of his submissions he placed his reliance upon cases reported in 1984 PLC 1480, PLD 1988 SC 53, 2004 SCMR 28 and 1998 SCMR 68.

7. We have heard the learned counsel for the parties and have gone through the material available before us and case laws cited by learned counsel for the parties. Both the learned counsel, at the very outset, submitted that these matters may be heard and decided at katcha peshi stage.

8. Record reflects that the petitioners are members/office bearers of Trade Union, namely, GERRY'S DNATA WORKERS UNION which is registered and has been certified as Collective Bargaining Agent (CBA) for the workmen employed in the establishment of M/s Gerry's Dnata (Pvt.) Limited. Registration Certificate and CBA Certificate are available at Pages 81 and 83 of the petition.

9. Case of the petitioners is that they filed their petitions under section 54 of Industrial Relations Act, 2012, before learned Single Member NIRC complaining of unfair labour practice that has been committed by the respondent establishment and an application under Regulation 32(2)C) of NIRC (P&F) 1973 seeking interim relief with regard to certain unfair labour practices but the learned Single Member NIRC after filing counter affidavit by the respondent establishment heard and dismissed the stay applications as well as main petitions of the petitioners in hasty manner without ascertaining the correctness of the counter affidavit.

10. We have also gone through the impugned orders of Learned Single Member and Full Bench of NIRC wherein it has been observed that as per terms and conditions of the employment the petitioners could be transferred to any work place as they have accepted the terms and conditions but record reveals that during pendency of proceedings the establishment of Respondents Nos.3 and 4 transferred the petitioners from Karachi to Peshawar and Lahore. Transfer letters are available at pages 137 to

141. The learned Single Member and Full Bench of NIRC have not taken into consideration that the petitioners Union (CBA) gave Notice in terms of Section 35 of Industrial Relations Act, 2012, Charter of demands, and Notice of strike to the respondent establishment, (copies are available at pages 93 to 113), which clearly show that the petitioners raised industrial dispute and presented charter of demand to the establishment and in relation thereto conciliation proceedings were pending settlement/disposal before the Federal conciliator but the respondent issued transfer letters to the active members/office bearers of Gerry's Dnata Employees Union (CBA) in order to keep them away from their awful trade union activities, which comes within the ambit of unfair labour practice which is defined in Section 31 of Industrial Relations Act, 2012. For the convenience relevant parts of section 31 are reproduced as under:-

31. Unfair labour practice on the part of employers.

No employer or trade. Union of employers and no person acting on behalf of either shall:-- (a) .. (b) .. (c) .. (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 workman: (i) is or proposes to become or seeks to persuade any other person to become, a member or officer of a trade union; (ii) participates in the promotion, formation or activities of a trade Union; (e) . (f) compel or attempt to compel any officer of the collective bargaining agent to arrive at a settlement by using intimidation, coercion, pressure, threat, confinement to a place, physical injury, disconnection of water, power and telephone facilities and such other methods;

11. Since there was industrial dispute pending between the parties regarding the grades, yearly increments, house rent etc. to the employees, therefore, the possibility could not be ruled out that such transfers were made to put the pressure upon the office bearers/members of the CBA. Not only this but on the very day of dismissal of the Petitions of the Petitioners by Learned Single Member, NIRC, the management of Respondents Nos.3 and 4 transferred Shafi-ud-Din, Zafar Ali, Haris Majeed Shah, Bakht Namroz, Sajjad Hussain Shah and Allah Dad, who were the Petitioners before the Learned Single Member from Karachi to Faisalabad, Multan and Quetta respectively.

12. Reverting to the contention of learned counsel for the respondent that there is concurrent finding, which cannot be disturbed in constitutional jurisdiction by this Court, we would like to observe that normally this Court cannot intervene to decide factual controversy under its constitutional jurisdiction but if finding of the Court below is based on no evidence then the exercise of constitutional jurisdiction is not barred. In the instant case, admittedly, the learned Single Member NIRC not only dismissed the stay applications but also dismissed the main petitions without recording evidence. The learned counsel for the petitioners while replying the point raised by learned counsel for respondent placed his reliance on case of "The Commissioner and another v. Mian Sher Muhammad" reported in 1972 SCMR

395. In case cited supra, it has been held by the Honourable Supreme Court that:- "High Court not ordinarily entitled to investigate disputed question of fact in writ jurisdiction. Finding of fact can, however, be interfered with if based on no evidence, or misreading of evidence, or in ignorance of material evidence, or on consideration of inadmissible evidence." The learned counsel has also relied upon another case (Tehsil Municipal Officer, TMA Kahuta and another v. Gul Fraz Khan) reported in 2013 SCMR 13, wherein the Honourable Supreme Court interfered in concurrent findings of two Courts below and set aside the impugned judgments.

13. Admittedly, in this case no evidence was recorded by learned Single Member NIRC and the petitions filed by the petitioners were dismissed while taking into consideration the counter affidavit of respondent establishment. So far the contention of learned counsel for respondent that recording of evidence was not necessary is concerned, we would like to observe that in support of the petitions seven petitioners had filed their affidavits whereas for respondent establishment one Azhar-ul-Haq, the Manager H.R and General Power of Attorney Gerry's Dnata (Pvt.) Ltd. had filed counter affidavit but the learned Single Member NIRC gave weightage only to the affidavit of Manager H.R and did not consider the affidavits of petitioners, this shows that the learned Single Member NIRC has not gone through the record, which was made available before it and passed the impugned order in hasty manner. Furthermore, non-recording of statements/evidence of petitioners would amount to deprive them from their legal right. The learned full Bench NIRC also without applying the judicial mind and going through the record dismissed the Appeals of the Petitioners. The decision on stay application and the main case are two distinct features. If the application of interim relief was dismissed, it was not necessarily meant that the petitioners had no case on merits. In the instant case in the same order, the main case was also dismissed without adverting to the grounds and pleas raised in the main case. The main case could not be dismissed without recording evidence. Not only the Single Member but the learned full Bench both committed error in this regard.

14. In view of the above discussion the petitions are admitted to regular hearing and the impugned orders passed by learned Single Member and Full Bench NIRC to the extent of dismissal of main cases are set aside being not sustainable under the law. The matters are remanded back to the learned Single Member NIRC with the directions to decide the main cases on merits after recording evidence. SL/S-71/Sindh Petition dismissed.