1976 PLP 112 (PLC)

S. 53 read with Penal Code (XLV of 1860), S. 21 and Criminal Pro cedure (V of 1898), S. 197 and West Pakistan Motor Vehicles Ordinance (XIX of 1965), S. 70 [as amended by West Pakistan Motor Vehicles (Amendment) Ordinance (IX of 1970) and West Pakistan Motor Vehicles (Punjab Amendment) Ordinance (XII of 1972)]-Managing Director, Punjab Transport Board-Government servant-Prosecution without proper sanction not possible for act done in discharge of his official duty. Muhammad Ismail v. Mian Ejaz Ahmad 1970 P L C 404 rel. Akbar Earid for Petitioner. Pirzada Abdul Saeed for Respondent. The above petition was marked for disposal on 29th June 1974, by the National Industrial Relations Commission and was received in this office by post on 20th July 1974. The parties were summoned and on the last date i.e., 2nd October 1964, only the complainant/petitioner was summoned for his preliminary examination and evidence. Today Habibullah Khan petitioner alongwith Akbar Farid Advocate has appeared on behalf of the petitioner-Union. Pirzada Abde-Saeed Advocate has volunteered his appearance on behalf of the respondent. The parties have addressed their arguments regarding the maintainability of the petition/complaint. It is stated in the petition that of the three workers trade unions of the Government Transport Service, D. G. Khan, the petitioner-Union has been working as R. T. C. Labour Welfare Union. The workers Union G. T. S., Dera Ghazi Khan, worked as C. B. A. on behalf of all the workers Unions for two years ending on 10th June 1974. Muhammad Sadiq Bhatti, respondent No. 2 worked as General Secretary of the said Union. He was promoted from the post of Senior Clerk to Assistant by the Managing Director, P. R. T. Board and transferred to G. T. S. Lyallpur on 24th May 1974. Another order was passed on 29th May 1974, under which he was re-transferred to D. G. Khan till further orders. The said transfer order was passed to the prejudice of the interests of the remaining two Trade Unions in regard to the forthcoming referendum for the election of C. B. A. after the term of the G. T. S. Workers' Union as C. B. A. was to expire on 1st October 1974. The respondent No. 2 was purposely detained at D. G. Khan to exercise his undue influence in the forthcoming referendum and to illegally out-vote the other two trade Unions including the petitioner-Union. It was prayed that respondent No. 1's order of re-transfer of respondent No. 2 may be cancelled, that the Registrar, Trade Unions, Multan be ordered to postpone the referendum till respondent No. 2 moves to Lyallpur, that respondent No. 1 may be ordered to refrain from doing any act prejudicial to the interest of the Trade Unions participating in the referendum and that an appropriate action under section 53 of the I. R. O, 1969 may be taken against respondents No. 1 and 2 for unfair labour practice alleged above. The main contention put forward on behalf of the respondent is that the respondents being public servants they could not be prosecuted according to the provisions of section 197 of the Code of Criminal Pro cedure. The West Pakistan Motor Vehicles (Punjab Amendment) Ordinance, 1970, has also been referred to, whereby the amended section 70 of the West Pakistan Motor Vehicle Ordinance, 1965, has been relied upon. According to subsection (8) of the said section, a person employed for the purposes of the Corporation established under section 70 of the West Pakistan Motor Vehicles Ordinance, 1905, shall be deemed to be a public servant within the meaning of section 21 of the Pakistan Penal Code 1860. The West Pakistan Motor Vehicles Ordinance, 1965, has been further amended under West Pakistan Motor Vehicles Punjab (Amendment) Ordinance, 1972 according to which Road Transport Corporation was substituted by the Road Transport Board. The Managing Director Punjab Transport Board Lahore, the respondent No. 1 is assumed to have been appointed under the orders of the Governor of the Punjab, the fact whereof has not been controverted on behalf of the petitioner-Union- This being the position the respondent No. 1 in making the re-transfer order of respondent No. 2 acted as a Government servant in the discharge of his official duty. The respondents have also relied upon the authority laid down in Muhammad Ismail v. Mian Ejaz Ahmad (1) in which the same view was held. The contention of she respondent cannot be brushed aside and does contain force inasmuch as the present petition cannot be sustained without proper sanction for the pro secution of the respondents. As regards the interference on the part of respondent No. 2 and through him by respondent No. 1 in the referendum held for the re- election of C. B. A. after the expiry of the term of G. T. S. Workers Union, the petition is altogether premature as the interference could not be then foreseen, nor the re-transfer of respondent No. 2 could possibly operate as an interference in the referendum. Because the presence of the General Secretary G. T. S. Workers Union at D. G. Khan could very well be beneficial to the election of the Union represented by him as the C. B. A. but that could scarcely be regarded as prejudicial to the rival Trade Union in the same election. I have been told on behalf of the respondent that the re-transfer of respondent No. 2 was ordered in consideration of an application on behalf of the G. T. S. Workers Union in order to ensure fairness in the election. Because a transfer of an effective office-bearer of a Trade Union pending the referendum of C. B. A. can be regarded as prejudicial to that Trade Union but any re-transfer of such person to his original pace can hardly be regarded as prejudicial to the contesting Trade Unions. On this view of the matter I do not find any basis of unfair labour practice to be attributed to the respondent. Under the circumstances I find no force in the petition as regards its entertainability as well as on merits. The petition is therefore dismissed.