2007 P L C 224

[National Industrial Relations Commission]

Before Ghulam Nauman Shaikh, Member

AZIZ MUHAMMAD

Versus

GENERAL TYRE & RUBBER COMPANY OF PAKISTAN LIMITED, through

Occupier and 3 others

Case Nos. 4A (33)/2006-K and 24(35)/2006-K, decided on 2nd June, 2006.

Industrial Relations Ordinance (XCI of 2002)---

----Ss. 49(4)(e) & 63---National Industrial Relations Commission (Procedure and

Functions) Regulations, 1973, Regln. 32(2)(c)---Unfair labour practice by employers---
Petition against---Interim relief---Application for---Petitioner, who was designated as
"Tyre Builder" in the establishment and was President 'of Workers Union in the
establishment, had alleged that employers unilaterally by force and compulsion wanted
run the Factory on Eid-ul-Fitr holidays and when he opposed employers from running
the factory on said two holidays he was transferred twice from one place of working to
another and was forced to work on lower post which was act of unfair labour practice
on part of employers---Employers objected maintainability of petition by petitioner
alleging that petitioner remained absent without permission for more than ten days and
As said absence was act of misconduct and disciplinary action. against him was legal
and contractual right of employers, disciplinary action against petitioner was not an act
of unfair labour practice by employers---Charge-sheet was sent to petitioner, but he
refused to receive same---Inquiry letters were also issued to the petitioner, but he
deliberately and wilfully did not attend the inquiry---Terms and conditions of
employment which had been accepted by petitioner, showed that he could be
transferred to any official work place and his designation could also be changed on
sole discretion of the employers---Even otherwise it was prerogative of the employers
to transfer his employee from one place to another keeping in view their own
administrative requirements---Counsel for employers stated that no action was taken
against any of the workers who did not work on Eid-ul-Fitr holidays---No office-bearer
or worker had filed any affidavit to the effect that employers had taken work on Eid-ul-
Fitr holidays by force or any action was taken against any workers for not working on
those holidays---Petitioner had not been able to prima facie substantiate that his
transfer was mala fide, illegal and amounted to unfair labour practice on part of
employers---Employers had a statutory right to initiate disciplinary proceedings against
employees and take same to logical conclusion---Petitioner having not been able to
make out prima facie case for grant of interim relief and other ingredients for grant of
interim relief, application filed by petitioner under Regln. 32(2)(c) of National
Industrial Relations Commission (Procedure and Functions) Regulations, 1973 for
grant of such relief was dismissed and interim order granted to him was, vacated.

1993 PLC 937; 1987 PLC 332; 1986 PLC 105; 2001 PLC 149; 2002 PLC 87; 1991
PLC 876; 2001 PLC 190; PLD 1988 SC 53; 2003 TD (Labour) 411; 1999 PLC 229;
1984 PLC 1480; 2001 PLC 86; 1996 SCMR 336; 2001 PLC 712; 2002 PLC (C.S.)
1632; Appeal No.12(43)/98; Appeal No.12(39)/2000; Appeal No.12(24)/2001; Appeal
No.12(36)/99; Appeal No.12(05)/05-L; C.P. No.D-235/05; Appeal No.12(184)/98-L;
2004 PLC 209; Muslim Commercial Bank Limited v. Muhammad Tariq 1999 PLC
229; Saeed Ahmad Kazi v. Chairman, National Industrial Relations Commission and
another 1984 PLC 1480; Searle Pakistan Limited v. Full Bench National Industrial
Relations Commission Islamabad and 2 others 2002 PLC 87; 1990 PLC 504; Adil
Khan and 3 others v. Postmaster-General, Southern Sindh Circle Karachi and another
2001 PLC 190; M. Muzaffar Ali v. Chairman, NIRC and others 1991 PLC 876; Ali
Gohar & Company (Pvt.) v. Saeed Ahmed and 15 others 2001 PLC 86; Divisional
Superintendent Pakistan Railway, Rawalpindi and others v. Alauddin Qureshi,
Member, NIRC and others 2001 PLC 103 rel.

Shafiq Qureshi for Petitioner.

Faisal Mahmood Ghani for Respondents.

ORDER

GHULAM NAUMAN SHAIKH (MEMBER).---This is petition under section 49(4)

(e) read with section 63 of the IRO, 2002 and Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 along with application under Regulation 32(2)(c) of NIRC (P&F)
Regulations, 1973 supported by affidavit filed by the petitioner against the
respondents.

2. Facts of the case as stated in the petition are that the petitioner is employed as
workman on permanent job in the respondents establishment and was designated as
"Tyre Builder" in the factory. He continued to be President of General Tyre and Rubber
Workers Union, CBA for about six years. Lastly he was elected as President in the
year, 2003, vide change of office-bearers filed as Annexure A with the petition. It is
submitted that on Eid-ul-Azha the CBA and the respondents management had entered
into an agreement on 26-1-2004 to operate the factory on Eid holidays, which has been
filed as Annexure "A/6" with the petition. It is submitted that on Eid-ul-Fitr, the
management unilaterally by force and compulsion wanted to run the factory on 3rd and
5th November, 2005. It is alleged that the respondents had threatened the workers of
their dismissal from employment, if they did not attend on 3rd and 5th November,
2005 on Eid-ul-Fitr holidays. The petitioner union had protested this act of the
respondents vide letter, dated 7-11-2005 filed as Annexure A/1 with the petition. It is
submitted that the petitioners' union on 1-1-2006 served, charter of demands on
respondents management. During the negotiations, the respondents management told
that they would not negotiate and settle the demands if the petitioner would sit in the
negotiations. It is submitted that the respondents management also threatened removal
of the office-bearers of the union and demanded the petitioner to resign from the post
of President of the union. Under duress, threats and coercion, the petitioner tendered
resignation from the post of President of CBA, but the respondents did not settle the
charter of demands. It is submitted that the petitioner was then issued transfer letter,
dated 7-11-2005, transferring him to Service Centre of the Company at Shahrah-e-
Faisal, where there was no job of the petitioner. The petitioner sent grievance notice on
15-11-2005 to the respondents. It is alleged that the transfer order, dated 7-11-2005
was issued malafidely, illegally and amounted to unfair labour practice and the same
was issued because the petitioner opposed the respondents to run the factory during
public holidays and Sundays. It is alleged that the respondents management is forcing,
threatening and compelling the office-bearers of the CBA to sign the settlement of their
choice, otherwise they will be removed from service. It is submitted that the members
of the petitioner's union and workers in general have demanded the petitioner to
withdraw his resignation, but the respondents do not want to see the petitioner as
President of the Union. It is alleged that the petitioner has been issued another transfer
letter, dated 24-2-2006, received by him by registered post A.D. filed as Annexure
"A/10" with the petitioner, transferring him to Warehouse at Multan, where the job is
sweeping, cleaning the floor, furniture, tyres and to load and unload the tyre in the
vehicles. The petitioner has sent grievance notice, dated 6-3-2006 through TCS, which
is filed as Annexure A/l1 with the petitioner. It is alleged that this transfer, dated 24-2-
2006 also is in violation of law, natural justice, illegal, mala fide and amounts to unfair
labour practice and it is issued with object to keep the petitioner away from the trade
union activities and holding the post of the union and also to stop his activities as
labour councillor of the area. It is alleged that on 18-4-2006 at about 10-00 a.m. the
petitioner was called in the office, where Mr. Haroon Zuberi persuaded the petitioner to
give up his union's membership and tender his resignation from the employment and
he was offered extra benefits of about Rs.20 lacs, but the petitioner refused, hence the
respondents threatened him of removal from employment. It is, therefore, prayed that
this Honourable Commission may be pleased to deal with the acts of unfair labour
practice on the part of the respondents and be further pleased to hold that the Annexure
"A/8" and Annexure "A/10" are illegal, mala fide, against natural justice and amounts
to acts of unfair labour practice on the part of respondents. Further the dismissal and or
any other adverse orders in respect of employment of the petitioner would be dealt
with under section 65 of the IRO, 2002.

3. On presentation of the petitioner ad interim prohibitory order was passed on 22-4-

2006, whereby the respondents were restrained from dismissing, terminating or
removing the petitioner from employment, which continues from date to date.

4. The respondents filed comments with preliminary legal objections on main petition
and counter affidavit on stay application. The legal objection raised is regarding
maintainability of the petition on the ground that remaining absent without permission
for more than ten days, being an act of misconduct, disciplinary action against the
petitioner/ workman is legal and contractual right of the respondents/employer and
such disciplinary action is not an act of unfair labour practice. It is submitted that the
petitioner has been issued charge-sheet, dated 15-3-2006 by Manager Multan
Warehouse for remaining absent for more than ten days, which was sent to the
petitioner through registered post and through courier service from Multan at all
available addresses of the petitioner filed as Annexure R/1 with the reply statement.
Letter of enquiry was also issued from Multan and enquiry was also conducted against
the petitioner at Multan, as such this Honourable Bench of Commission has no
jurisdiction. It is submitted that this fact has been wilfully and deliberately suppressed
by the petitioner. It is submitted that the petitioner has already invoked the remedy
provided under section 46 of the IRO, 2002, by serving grievance notice filed as
Annexure "A/9" with he petition on respondents, as such the petitioner cannot invoke
the two parallel remedies, one under section 46 of IRO, 2002 before the labour Court
and second before the learned Commission under the garb of mala fide and allegation
of unfair labour practice. On merits of the case the contents of Para.1 of the petition
that the petitioner was designated as "Tyre Builder" is denied. It is submitted that the
petitioner was re-appointed as "Service Helper" in terms of letter of appointment, dated
11-4-1995, the terms and conditions whereof were duly accepted by the petitioner. The
appointment letter has been produced as Annexure "R/2" and joining report as
Annexure R/3 with reply statement. It is submitted that the petitioner has deliberately
and wilfully not attached the last approval of change of office-bearers, dated 28-1-2006
and annexed the change of office-bearers, dated 3-12-2003, which stands expired. The
petitioner is no more office-bearer of the union. It is submitted that respondent No.1
factory is tyre manufacturing unit and due to pressure from Government of Pakistan,
Army, Defence Forces, Automobile Industries and heavy demand of general public, the
respondents have to maintain the pace of production and dispatch to meet the demand
of Automobile Industry. Under these circumstances the respondents continued to work
on holidays, for which overtime at the rate of triple wages in addition to ex-gratia and
lucky draw for 20 workers were paid to the workers at the rate of Rs.2500 per head. It
is denied that the respondents had threatened the workers for dismissal from
employment if they did not attend on 3rd and 5th November, 2005. It is submitted that
large number of workers did not attend on 3-11-2005 and 5-11-2005 on overtime work
and they were treated as on Eid holidays and none of those workers were proceeded
departmentally. Copy of Daily Attendance Reports of 3rd and 5th November, 2005
have been filed as Annexures "R/4" and "R/5" with the reply, statement. It is also
denied that the respondents along with Departmental Manager had threatened the
workers of their removal from employment, if they did not attend their duties on Eid-
ul-Fitr holidays. It is submitted that the letter, dated 7-11-2005 sent by the union was
responded by the respondents and so also other letter, dated 11-11-2005 and the CBA
had then withdrawn the said letters, dated 7-11-2005 and 11-11-2005 through their
General Secretary on 16-11-2005 filed as Annexure R/8 with the reply statement. It is
admitted that on Eid-ul-Azha there was an agreement with union on 26-1-2004 that the
workers would work on public holidays. It is submitted that it is not compulsory for the
management to enter into such an agreement with the CBA. It is denied that the
respondents have tried to crush the union by force. It is also denied that the
respondents have been indulging or interfering into the union elections or referendum.
It is also denied that the respondents management is delaying the industrial dispute.
The copies of minutes of meeting of bilateral negotiations with the CBA have been
filed as Annexure "R/10" with the reply statement. It is denied that the transfer letter of
the petitioner, dated 7-11-2005, filed as Annexure "A/8" with the petition, was issued
by the respondents by way of unfair labour practice. It is submitted that the petitioner
was earlier promoted as "Office Assistant" by promotion letter, dated 18-2-2005 filed
as Annexure R/11 with the reply statement. It was due to exigency of work, whereby
Office Assistant was required as such services of the petitioner were transferred and he
was posted at Company's Service Centre located at Shahrah-e-Faisal, Karachi. It is
denied that there was no job at place of transfer suitable to the status of the petitioner.
It is submitted that the petitioner has to perform the work at any location of the
respondent No.1 as an Office Assistant and not job of Alignment of Tyre, for which
specially trained workers are already performing work at Shahrah-e-Faisal Service
Centre, Karachi. With regard to grievance notice, dated 15-11-2005 served by the
petitioner, it is submitted that the remedy for the petitioner is to move to Labour Court,
but instead of pursuing the said remedy, the petitioner has filed this petition malafidely
before this Commission. It is denied that transfer order, dated 7-11-2005 was issued
illegally, malafidely and amounted to unfair labour practice. It is submitted that since
the petitioner is not an office-bearer, hence question of holding negotiations with the
petitioner on charter of demands does not arise, as there was no occasion for allowing
the petitioner to sit in the meetings of the charter of demands. It is submitted that even
the CBA has not communicated the name of the petitioner as member of negotiating
team nor they had raised such objection at the time of negotiations held for the charter
of demands. It is denied that the respondents compelled, harassed or coerced the
petitioner to resign from the post of President and malafidely propagated amongst the
members of the union that no settlement would take place if the petitioner did not
tender his resignation from the post of President of the union. Regarding the support of
the members of the union in particular and workers in general to the petitioner, as it is
stated in para.14 of the petition, it is submitted that trade union activities are not the
domain of the respondents. It is submitted that redesignation-cum-transfer of the
petitioner, dated 24-2-2006 to Multan Warehouse as "Senior Despatcher" is according
to the terms and conditions of employment of the petitioner. It is submitted that the
petitioner had sent letter, dated 6-2-2006 for withdrawal of the transfer order, which
with mala fide intention, the petitioner has corrected as 6-3-2006 filed as Annexure
"R/13'. It is denied that at Multan job of the petitioner is of sweeping and cleaning the
floor, loading and unloading the tyre on the vehicles. It is submitted that the petitioner
deliberately and wilfully did not report for his duty at Multan Warehouse of the
company. It is denied that the transfer letter, dated 24-2-2006 is in violation of law,
natural justice, mala fide, illegal and amounts to unfair labour practice. It is submitted
that the respondents have establishments all over the country and due to exigency of
work, in exercise of its legal and contractual right and according to the terms and
conditions of appointment letter, the petitioner was transferred to Multan Warehouse. It
is denied that the petitioner was called in the office on 18-4-2006 at about 10-00 a.m.
and he was persuaded by Mr. Haroon Zubairi to give up the trade upon activities and
membership of the union by tendering resignation and he was offered extra benefits of
Rs.20,000,00. It is submitted that since the petitioner did not report at Multan
Warehouse, as such he was issued charge-sheet, dated 15-3-2006 by the Manager,
Multan Warehouse. This charge-sheet was sent to the petitioner on his available
address with the respondents, which he refused to receive. The enquiry letters also
were issued to the petitioner on 8-4-2006 and also on 20-4-2006. The petitioner
deliberately and wilfully did not attend the enquiry. The Enquiry Officer could have
completed the enquiry, but one more chance was given to the petitioner and another
enquiry notice, dated 3-5-2006 was sent to the petitioner. All other allegations have
been denied by the respondents.
5. Petitioner filed his affidavit-in-rejoinder.

6. I have heard arguments of Mr. Shafique Qureshi, learned advocate for the petitioner
and Mr. Faisal Mahmood Ghani, learned advocate for the respondents.

7. Mr. Shafique Qureshi, learned advocate for the petitioner has contended that the
petitioner was appointed as "Tyre Builder" about 18 years back. He was removed from
employment on account of his trade union activities. The union had espoused the cause
of the petitioner and he was re-employed in the respondents establishment vide
appointment letter, dated 11-4-1995 Annexure R/2. It is submitted that in this letter it is
not mentioned that the petitioner can be transferred to any other place. It is submitted
that the petitioner has remained President of the Union. Earlier an agreement was
executed between the CBA and. management of the respondents on 26-1-2004 that
workers would work on Eid-ul-Azha holidays. On Eid-ul-Fitr on 3rd and 5th
November, 2005, 'the respondents unilaterally compelled and forced the workers to
work on 3rd and 5th November, 2005 on Eid-ul-Fitr holidays. The union had,
therefore, written letter, dated 7-11-2005 to the respondents filed as Annexure "A/1"
with the petitioner and another letter, dated 11-11-2005 to the Joint Director Labour,
filed as Annexure "A/3" with the petition. It is submitted that the petitioner was issued
letter of his transfer, dated 7-11-2005, Annexure "A/8", but the same is not a transfer
letter as per S.O. 2-A of Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 and is victimization due to trade union activities of the petitioner.
There is nothing shown in this letter as to what was exigency of work. The petitioner
had sent grievance notice regarding the transfer, dated 7-11-2005 filed as Annexure
"A/9" with the petition. It is submitted that charter of demands was served by CBA on
the respondents, which is pending negotiations. It is alleged that the respondents have
threatened the office-bearers of the union that if the petitioner did not resign from the
post of President, the management will not negotiate on the charter of demands. It is
submitted that the respondents then issued another letter, dated 24-2-2006, transferring
the petitioner to Multan Warehouse, which has been filed as Annexure "A/10" with the
petition. It is submitted that all of the office-bearers of the union are coerced by the
respondents to sign the settlement of their choice. The petitioner is Labour Councillor
and also Chairman of Panchait Committee. The petitioner is born in Karachi and he
lives in Karachi along with his family, as such he cannot afford two houses one at
Karachi and the other at Multan. The petitioner has prima facie case in his favour and
balance of convenience lies in his favour and he will suffer irreparable loss and injury,
in case the stay is not confirmed. In support of his contention Mr. Shafique Qureshi,
learned advocate for the petitioner has placed his reliance on 1993 PLC 937(NIRC
Full Bench), 1987 PLC 332 (NIRC Full Bench) and 1986 PLC 105 (Karachi High
Court).

8. Mr. Faisal Mahmood Ghani, learned advocate for the respondents has contended that
the petitioner was appointed as "Service Helper" and not "Tyre Builder". He has
referred to Annexure "R/2", letter of appointment of the petitioner and Annexure "R/3"
the joining report of the petitioner. It is submitted that terms and conditions of the
appointment letter were accepted by the petitioner and he had signed the same. The
petitioner was promoted as "Office Assistant" on 18-2-2005 vide Annexure "R/11"
filed with the comments. It is submitted that due to exigency of work, the petitioner
was transferred to Multan Warehouse vide transfer letter, dated 24-2-2006, Annexure
"A/10". Admittedly the transfer has taken effect and the petition has been filed on 22-
4-2006. It is submitted that the petitioner did not report for duty at Multan Warehouse
despite sufficient time was allowed to the petitioner. Consequently the petitioner was
issued charge-sheet, dated 15-3-2006 for his remaining absent from duty for more than
ten, days by Manager Warehouse, Multan and charge-sheet was sent to he petitioner by
registered post A.D. and through TCS on all the available addresses of the petitioner at
Karachi and also to his native place. The petitioner was then issued letters of enquiry,
which were also posted to the petitioner on his available addresses with the
respondents, but the petitioner deliberately and wilfully did not participate in the
enquiry. The Enquiry Officer had given one more chance to the petitioner to participate
in the enquiry, but despite that he did not participate in the enquiry. It is submitted that
the petitioner has submitted change of office-bearers, dated 3-12-2003, Annexure "A"
filed with the petition, which stands expired and new change of office-bearers has been
approved by the Registrar of Trade Unions, which he would submit during the course
of day, which, later on he filed along with statement. It is submitted that the petitioner
is no more office-bearer of the trade union, as such the question of his sitting in the
meetings held to negotiate charter of demands does not arise. It is submitted that due to
demands of the public sector as well as private sector, the respondents had offered the
workers to work on Eid-ul-Fitr holidays on 3rd and 5th of November, 2005, for which
they were to be paid three times overtime, ex-gratia and lucky draw for 20 workers
were paid to the workers at Rs.2500 per head. None of the workers was forced to work
on Eid-ul-Fitr holidays. It is submitted that whoever had not worked on the Eid-ul-Fitr
holidays, the respondents did not take action against any of them. The respondents
have filed Daily Attendance Report as Annexure "R/4" with, the reply statement to
substantiate the version that many of the workers did not do overtime on Eid-ul-Fitr
holidays on 3rd and 5th November, 2005, but no action was taken against them. It is
submitted that the petitioner has levelled allegation of annoyance of CBA with the
respondents management in order to make out a case of unfair labour practice,
although the petitioner knew the CBA had withdrawn all of its letters. It is submitted
that stereotype allegations have been made by the petitioner that the respondents
wanted to crush the trade union. If it is so, why CBA has not filed a case against the
respondents. It is submitted that transfer of the petitioner is his personal issue, which
he has tried to connect with the industrial dispute. The petitioner is not member of
negotiating team, which shall appear from the proceedings of the minutes of meeting
held on the charter of demands filed as Annexure "R/10" with the reply statement. It is
submitted that the petitioner had sent letter, dated 6-2-2006 for withdrawal of the
transfer letter, dated 7-11-2005, which has been filed as Annexure "R/13" with reply
statement, on which the petitioner has malafidely manipulated the date as 6-3-2006
filed as Annexure "R/11" with the petition in order to justify the limitation period in
respect of his grievance notice. It is submitted that despite serving grievance notice, the
petitioner has not tiled grievance petition before the Labour Court. It is submitted that
the petitioner has neither been threatened nor called and offered an amount of Rs.20
lacs, beside his legal dues if he resigns from the membership of the trade union and
employment. It is submitted that all the claims are made by the petitioner only to
justify his petition. It is submitted that it is prerogative of the respondents to take
disciplinary action against the petitioner for his absence of more than ten days and such
disciplinary proceedings, being conducted by the respondents, cannot be termed as an
act of unfair labour practice. In support of his above contentions Mr. Faisal Mahmood
Ghani, learned advocate for the respondents has placed his reliance on 2001 PLC 149
(NIRC Full Bench), 2002 PLC 87 (Karachi High Court), 1991 PLC 876 (Lahore High
Court), 2001 PLC 190 (NIRC Full Bench), PLD 1988 Supreme Court 53 (Supreme
Court of Pakistan Full Bench), 2003 TD (Labour) 411 (NIRC Full Bench), 1999 PLC
229 (NIRC Full Bench), 2001 PLC 103 (NIRC Full Bench), 1984 PLC 1480 (Karachi
High Court), 2001 PLC 86 (NIRC Full Bench), 1996 SCMR 336 (Supreme Court Full
Bench), 2001 PLC 712 (Lahore High Court), 2002 PLC (C.S.) 1632 (Lahore High
Court), Appeal No.12(43)/98(NIRC Full Bench), Appeal No.12(39)/2000 (NIRC Full
Bench), Appeal No.12(24)/2001 (NIRC Full Bench), Appeal No.12(36)/99, Appeal
No.12(05)/05-L (NIRC Full Bench), C.P. No.D-235/05 (High Court of Sindh at
Karachi DB), Appeal No.12(184)/98-L. (NIRC Full Bench) and 2004 PLC 209
(Member NIRC).

9. I have given my anxious consideration to the arguments advanced by the learned

advocates for the parties and I have gone through the petition, application under
Regulation 32(2)(c) of NIRC(P&F) Regulations, 1973, supporting affidavit, reply
statement with preliminary legal objections and counter affidavit filed by the
respondents, affidavit-in-rejoinder filed by the petitioner and the documents annexed
by both the parties.

10. The claim of the petitioner in para.1 of the petition that he was designated as "Tyre
Builder" is controverted by the respondents as contrary to the facts. According to the
respondents the petitioner was employed as "Service Helper" vide appointment letter,
dated 11-4-1995. The terms and conditions mentioned, whereof were accepted by the
petitioner. The appointment letter has been filed with reply statement as Annexure
"R/2". The petitioner was promoted as "Office Assistant" vide promotion letter, dated
18-2-2005, mentioning therein that other terms and conditions of letter of appointment
of the petitioner shall remain unchanged, which has been filed with reply statement as
Annexure "R/11". Due to exigency of work read with terms and conditions of
employment of the petitioner, his services were transferred and he was posted at
Company's Service Centre at Shahra-e-Faisal, Karachi and was directed to report at his
place of posting with immediate effect vide letter of transfer, dated 7-11-2005, which
has been filed as Annexure "A/8" with the petition. The petitioner refused to accept the
transfer letter as endorsed thereon, but later on received the said letter of transfer on
10-11-2005 as acknowledgement endorsed and signed by the petitioner. Being
aggrieved and dissatisfied with the impugned transfer, dated 7-11-2005, the petitioner
had sent a grievance notice, dated 15-11-2005 under section 46 of the IRO, 2002 to the
respondents, which is prerequisite for filing the grievance petition before the labour
Court. However it is an admitted fact that the petitioner did not file any grievance
petition before the labour Court, following sending of the grievance notice to the
respondents. It appears that the petitioner was then re-designated as "Senior
Dispatcher" in the same Grade-III with salary and remaining terms and conditions of
employment to remain unchanged and due to exigency of work read with terms and
conditions of his appointment, he was transferred and posted at Company's Warehouse
of his appointment, he was transferred and posted at Company's Warehouse at Multan
and he was directed to report to Mr. G. Hassan Ansari, Manager at Multan vide
Redesignation-cum-Transfer order, dated 24-2-2006, which has been filed as Annexure
"A/10" with the petition. It is purported that the petitioner had sent grievance notice,
dated 6-3-2006 to the respondents for withdrawal of his transfer through TCS, but this
fact mentioned in para. 18 of the petition is vehemently denied by' the respondents as
according to the respondents this grievance notice on the subject "withdrawal of
transfer" was received by the respondents on 6-3-2006 and the date on this letter of
"withdrawal of transfer" mentioned as 6-2-2006 with mala fide intentions was
corrected by the petitioner. In support of his contention the respondents have filed
photo copy of this "withdrawal of transfer" with reply statement as Annexure "R/13".
This letter for "withdrawal of transfer" sent by the petitioner to the respondents
mentions about the letter of his transfer, dated 7-1 1-2005 and does not mention about
his transfer, dated 24-2-2006 to Multan Warehouse.

11. The petitioner has alleged that the transfer order, dated 7-11-2005 filed as
Annexure "A/8" and his transfer letter, dated 24-2-2006 to Multan Warehouse filed as
Annexure A/10 with the petition are in violation of law, illegal, mala fide and amounts
to unfair labour practice. The object of his transfer to Multan Warehouse filed as
Annexure "A/10" is to keep him away from his trade union activities and holding the
union office and also to stop his activities as labour councillor of the area. Except these
general and vague allegations no instance of victimization on account of his trade
union activities is stated by the petitioner. It is alleged by the petitioner that the charter
of demands served by the CBA is pending negotiations with the respondents. The
respondents are harassing, threatening and compelling the union office-bearers to sign
the settlement of respondents' choice. None of the office-bearers of the CBA has filed
any affidavit to support the version of the petitioner that the respondents are
pressurizing the office-bearers to sign the settlement of their choice. It; therefore,
appears that the matter does not relate to any alleged threat to the office-bearers of the
union, but the petitioner has made an attempt to connect his transfer letter to the charter
of demands served by CBA pending negotiations with the respondents.

12. The petitioner filed change of office-bearers, dated 3-12-2003 as Annexure "A'',
showing the petitioner as President. The learned advocate for the respondents during
his arguments submitted that the change filed by the petitioner is previous change of
office-bearers and the present change of office-bearers is dated 28-1-2006, which
change of office-bearers he undertook to file during the course of day, which later on
was filed along with statement by the advocate for the respondents. This change of
office-bearers, dated 28-1-2006 shows Muhammad Wahid Khan as President of the
union. Admittedly the petitioner had resigned from the post of President of the union.
As to on which date the petitioner resigned from the post of President of the union is
not mentioned in the petition. There is nowhere mentioned in the petition whether the
petitioner had filed any complaint before the competent authority that his resignation
from the post of President was obtained by the respondents by force. Even otherwise
this is an exclusive affair of trade union, to which the petitioner might have submitted
his resignation, which after being approved under the legal process, another President,
namely, Muhammad Wahid Khan has been elected as President of the union. In para.10
of the petition the 'petitioner has stated that the union had given charter of demands on
or about 1-1-2006. During negotiations the respondents came with plea that neither
they will talk with the petitioner nor they will allow the petitioner to sit in the meeting
to settle the charter of demands and threatened to remove all the office-bearers of the
union. It is further stated that the respondents have compelled, harassed and coerced
the petitioner to submit the resignation from the post of President of the union
otherwise the settlement would not take place. In support of this allegation no any
document has been produced by the petitioner. On the contrary the respondents have
filed the proceedings of negotiations between the office-bearer of CBA and the
management on the charter of demands 2006-2007 as Annexure "R/10" with the reply
statement, which started from 9-1-2006 and continued to take place on various dates up
to 24-4-2006, wherein Muhammad Wahid Khan has been shown as President of the
CBA of the Collective Bargaining Agent. It, therefore, appears that the petitioner has
never been member of negotiations team to negotiate the charter of demands with the
management of the respondents. The allegation of the petitioner in para.18 of the
petition that at Multan the job is of sweeping and cleaning of the floor, furniture and
tyres and also loading and unloading of the tyres in the vehicles, but the letter of
redesignation-cum-transfer, dated 24-2-2006 of the petitioner of his transfer to Multan
Warehouse shows that he has been redesignated as "Senior Dispatcher" in the same
Grade-III and salary terms and conditions will remain unchanged and is posted at
Multan Warehouse. I have not been able to reconcile whether being posted as "Senior
Dispatcher" at Multan Warehouse, the petitioner has to sweep and clean the floor,
furniture and tyres and have to load and unload the tyres in the vehicles. According to
the respondents the redesignation-cum-transfer of the petitioner vide letter, dated 24-2-
2006 is according to his terms and conditions of his appointment letter, dated 11-4-
1995, which are to remain unchanged in this redesigntion-cum- transfer letter. Para-c
of the terms and conditions of employment of the petitioner in his appointment letter,
dated 11-4-1995, which were accepted and signed by him, reads as follows:

"(c) You can be transferred at any official work place of the company at any
time and your designation can also be changed on the sole discretion of the
Company keeping in view of the same grade and pay and no objection will be
made by you if it happens. In case you do not accept such change, it could
disqualify you from the services of the Company."

13. According to the above terms and conditions of employment of the petitioner, the
petitioner had himself accepted that he could be transferred to any official work place
of the company and his designation could also be changed on the sole discretion of the
company keeping in view of the same grade and pay and no objection would be made
by him if it happens and in case he would not accept the change it would disqualify
him from the service.

14. According to the petitioner on 26-1-2004, the respondents had previously entered
into an agreement with CBA on the occasion of Eid -ul-Azha, regarding the overtime
to be performed by the workers filed an Annexure "A/6", whereas on occasion of Eid-
ul-Fitr the respondents forced the workers to work from shift on 3rd and 5th of
November, 2005. The learned advocate for the petitioner in his arguments contended
that to take work on public holidays is in violation of Industrial and Commercial
Employment (Standing Orders) Ordinance, 1968. The learned advocate for the
petitioner has not furnished any explanation that why such violation of Industrial and
Commercial Employment (Standing Orders) Ordinance, 1968 was also committed by
CBA itself by entering into an agreement on 26-1-2004 with the management of
respondents to take work from the workers on public holidays oft payment of overtime
and ex gratia, which the petitioner also had signed being President of the CBA. It is not
explained whether this violation carne to the knowledge of the petitioner after he
resigned from the post of President, so as to make this as main bone of contention with
the management in this petition, alleging thereby his victimization on this score, and to
have resisted with the management on taking work from the workers on Eid-ul-Fitr
holidays. The advocate for the respondents submitted that the respondents management
neither compelled nor forced the workers to do overtime work on Eid-ul-Fitr holidays,
but the respondents had made such offer to the workers' on paying them overtime three
times of the normal daily wages and ex gratia and whoever of the workers accepted,
they carne and performed the work, which shall be evident from the daily attendance
report of Eid-ul-Fitr filed with reply statement as Annexure "R/4". This shows that not
all of the workers had worked on Eid-ul-Fitr. According to the learned advocate for the
respondents no action was taken against any of the workers, who did not work on Eid-
ul-Fitr. No any office-bearer or worker had filed any affidavit in this proceedings that
the respondents had taken work on Eid-ul-Fitr by force or any action was taken against
any of the workers for not working on Eid-ul-Fitr.

15. In view of the above stated facts and circumstances it appears that the petitioner
has not been able to prime facie substantiate that letter of transfer, dated 7-11-2005 and
letter of redesignation-cum-transfer, dated 24-2-2006, transferring hint to Warehouse
Multan are mala fide, illegal and amounts to unfair labour practice on the part of
respondents. It is statutory right of the respondents to transfer and post the petitioner in
exigency of work and as per terms and conditions of employment agreed in the letter
of appointment, which cannot be curbed on mere general allegations that the same are
mala fide, illegal and amounts to act of unfair labour practice, till it is proved so by the
petitioner by trustworthy, reliable and cogent evidence.

16. In case of Muslim Commercial Bank Limited v. Muhammad Tariq reported in 1999
PLC 229 Full Bench of NIRC held that in absence of strict proof of alleged unfair
labour practice on the part of employer, transferring the employee was right of
employer which could not be restrained merely because employee happened to be
Officer/Member of the union. In order, dated (sic) passed in Appeal No.12(24)/05-L
(Shahid Naz v. KSB), Full Bench of NIRC has held that it is settled principle that it is
an accepted proposition that it is a prerogative of the employer to transfer his employee
from one place to another keeping in view his own administrative requirements. Thus,
ordinarily an employee cannot make legitimate grievance against his transfer. It can
also not be reasonably contended that the appellant will suffer any irreparable loss and
injury if the interim relief sought by him in not granted and the impugned transfer
order is implemented. In order, dated 31-1-2005 passed in Appeal No.12(05)/05-L
(Talat Mahmood v. WAPDA), Full Bench of NIRC observed that transfer is one of the
terms and conditions of service. Learned counsel of the appellant has failed to
substantiate the element of unfair labour practice in the impugned transfer. In case of
Saeed Ahmad Kazi v. Chairman, National Industrial Relations Commission and
another reported in 1984, PLC 1480 Honourable Karachi High Court held that
completed transfers cannot be stayed.
17. It is an admitted fact that the petitioner was transferred to Warehouse Multan vide
redesignation-cum-transfer letter, dated 24-2-2006, whereby he was also directed to
report to Mr. G. Hassan Ansari, Manager at Warehouse Multan with immediate effect.
The petitioner has not reported for duty at Warehouse Multan. Consequent whereof the
petitioner was issued charge-sheet, dated 15-3-2006 for his absence without permission
or leave from 1-3-2006 (the approximate date of his joining at Multan Warehouse). The
said charge-sheet was sent to the petitioner at his address available with the
respondents through registered post A.D. and TCS.-The petitioner did not furnish any
reply to the charge-sheet, as such enquiry notices, dated 8-4-2006 and 20-4-2006 were
issued to the petitioner. The said Enquiry Notices were sent to him through TCS and
registered post A.D. at all of his addresses available with the respondents, which have
been filed with the reply statement as Annexure "R/16". The petitioner has not attended
the enquiry as well. The disciplinary proceedings are, therefore, pending against the
petitioner for his absence from duty. In Appeal No.12(43)/98 Full Bench of NIRC
observed that apparently the charge of absence from duty has no nexus with the lawful
trade union activities of the appellant. As such no element of-unfair labour practice
was involved in taking disciplinary proceedings against the appellant. In case of Searle
Pakistan Limited v. Full Bench, National Industrial Relations Commission Islamabad
and 2 others reported in 2002 PLC 87 at page 95 Honourable Karachi High Court '
observed that domestic inquiry against respondent No.3 was to be initiated for his
continuous unauthorized absence for more than ten (10) days in view of the provisions
of Standing Order 15(iii)(e) of Industrial and Commercial (Standing Orders)
Ordinance, 1968, according to which absence without leave for more than ten (10)
days amounts to misconduct. It, was, therefore, held that in initiating disciplinary
proceedings against respondent No.3 on the basis of the inquiry report submitted by the
Inquiry Officer was not guilty of committing unfair labour practice as defined in
section 15 of the Ordinance. In the circumstances exercise of jurisdiction by
respondents Nos. 1 and 2 under section 22-A(8)(g) of the Ordinance was beyond the
scope of their jurisdiction. In 1990 PLC 504 it was held that service of show-cause
notice or holding of domestic inquiry would not be required in case of voluntary
abandonment of work by workman.

18. By now it is well-settled that it is statutory right of the employer to initiate

disciplinary proceedings and take the same to its logical conclusion. In case of Pakistan
Machine Tool Factory (Pvt.) Ltd. v. Muhammad Siddique, 2001 PLC 149 Full Bench
National Industrial Relations Commission at page No.92 held that law by now is fairly
well-settled that it is the inherent right of the employer to initiate disciplinary
proceedings against an allegedly delinquent employee and to decide whether the
charge levelled against him is correct or not and in our view, ordinarily it does not lie
with this Commission to intervene while the proceedings are still in progress, and to
quash such proceedings on the plea of unfair labour practice. Needless to state that in
case any adverse order is finally passed against the employee in such proceedings, it is
of course open to him to challenge the same in appropriate proceedings. Again in case
of Adil Khan and 3 others v. Postmaster General, Southern Sindh Circle Karachi and
another reported in 2001 PLC 190 it was observed that employers had a right to initiate
disciplinary proceedings against employees on charge of misconduct-Issuance of
charge-sheet and holding of enquiry to find out whether charge levelled against
employees was correct or not, was statutory requirement-Employer having initiated
disciplinary proceedings, could take them to logical end and employees could not be
permitted to frustrate/circumvent such proceedings by simply pleading victimization
on account of trade union activities unless they placed on record sufficient material to
show that action being taken against them was motivated by their lawful and legitimate
trade union activities.

19. In case of M. Muzaffar Ali v. Chairman, NIRC and others reported in 1991 PLC
876 at page 878 Honourable Lahore High Court held that the assumption of
jurisdiction by NIRC on the ground that the allegations were not correct, or the show-
cause notices and the inquiry were defective, was clearly uncalled for as none of the
acts complained of amounted to unfair labour practices. In case of Iftikhar Ahmad and
2 others v. President National Bank of Pakistan and others reported in PLD 1988
Supreme Court 53 Full Bench of Honourable Supreme Court of Pakistan at page 66
held that the cases which the Benches are empowered to hear under the clause must
have an element of unfair labour practices in them; it does not encompass cases where
no allegation of unfair labour practices is made. It may be mentioned that sections 15
and 16 of the Ordinance set out instances of unfair labour practices on the part of the
employers as well as workmen. It is, therefore, not right to construe the clause in
question as conferring a general jurisdiction upon the Benches to entertain all kinds of
grievance petitions even though they may not be relatable to unfair labour practices.

20. As already stated above the petitioner has not been able to make out prima facie
case for grant of interim relief and other ingredients for grant of interim relief are also
lacking. In the case of Ali Gohar and Company (Pvt.) v. Saeed Ahmed and 15 others
reported in 2001 PLC 86 and Divisional Superintendent Pakistan Railway, Rawalpindi
and others v. Alauddin Qureshi, Member, NIRC and others reported in 2001 PLC 103
the Full Bench of NIRC has given guidelines for grant of interim relief that there can
be no cavil with the proposition which by now is well-settled that before granting
interim relief, the Court or the Tribunal must find whether there existed a prima facie
case in favour of person seeking the interim relief and it must also examine the
concepts of balance of convenience/inconvenience and irreparable loss or injury. I have
already mentioned above that the petitioner has not been able to make out a prima facie
case for grant of interim relief and other two ingredients also do not appear to be
present in the case of the petitioner.

For the aforesaid reasons I dismiss the application under Regulation 32(2)(c) of NIRC
(P&F) Regulations, 1973 and vacate the interim prohibitory order passed on 22-4-2006
by this Bench of Commission. To come up on 22-6-2006 for filing affidavit-in-
evidence by the petitioner.

Announced in open Court.

H.B.T./14/NIRC Order accordingly.

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