ARSHAD MAHMOOD vs FACTORY MANAGER, GULSHAN CARPET IDUSTRIES

ORDER

1. The petitioner, who joined the respondent concern as clerk on 1-9-1984, has filed the present petition under section 22-A(8)(g) of the I.R.O., 1969 along-with an application under Regulation 32(2) of the NIRC (P&F) Regulations, 1973, challenging his transfer order dated 14-4-1993 (Annexure L) from Factory to Head Office of the respondent concern, asserting that he had been made victim of excesses on account of his trade union activities performed by him in the capacity of President of the Gulshan Carpet Industries Workers' Union, which were not liked by the management resulting in his unjustified transfer.

2. The allegations of the petitioner were repudiated and the transfer was stated to have been made in the best interest of the management'.

3. Ch. M. Khalid Farooq, Advocate appeared on behalf of the petitioner 5` whereas the management was represented by Mr. H.R. Haider, Advocate.

4. Learned counsel for the petitioner contended that this was not a simple case of normal transfer from factory to the Head Office but the transfer of the petitioner has to be viewed in the background of the surrounding circumstances. The learned counsel maintained that the petitioner had been Championing the cause of his co-workers in order to secure better terms and editions of service for them on account of which he incurred animosity of the management which ultimately resulted in his transfer. The learned counsel also maintained that his transfer has been ordered with mala fide intentions for no other reason but to deprive the petitioner of his guarantee and secure rights available wider the Factories Act and West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. He relied on Abdul Razzaq v. M/s. Ihsan Sons Limited and 2 others 1992 SCM R 505. The learned counsel further submitted that at the relevant time the petitioner, who according to the learned counsel had sustained injuries during firing at the instance of the management, was on medical leave and advised rest till 30-6-1993 and as such the management had no good reason to order his transfer.

5. Mr. H.R. Haider, Advocate, learned counsel for the management, in reply to the arguments addressed on behalf of the petitioner, maintained that the impugned transfer order was made in the light of the letter of appointment dated 20-9-1984 (Annexure A) requiring the petitioner to serve anywhere in Pakistan including the Head Office and as such it was not open to exception.

6. The management has inherent right to transfer its employees for smooth running of its business and it cannot be challenged. Transfer is the prerogative of the employer. It is always ordered in the best interest of the establishment. The posting of an employee from one place of posting to another in the same establishment is the right of every management and does not constitute unfair labour practice. If an employee is aggrieved by his transfer he can only go to the appropriate forum for redress and not through a petition under section 22-A(8)(g) of the I.R.O., 1969. Learned counsel for the respondent invited my intention to the petitioner's letter of appointment, which gives unfettered right to the management to post the petitioner anywhere in Pakistan including the Head Office. The transfer of the petitioner thus, appears to be in exercise of the powers explicitly reserved to the management and agreed by the petitioner, under his contract of employment. Even otherwise, the management has the right to transfer an employee from one station to another station in the exigencies of service and cannot be considered as punishment.

7. See Muhammad Sultan Ahmad v. National Bank of Pakistan and Matiullah Has1mi v. Makarwal 1979 PLC 492 and 1964 PLC 6, wherein it was held that transfer of employees per se is no a charm in the terms and condition of service. The petitioner is a clerk dealing with typing work. His services can be utilized in the Head Office. The management has the right to utilize the services of its employees according to the needs and requirements of the establishment. I may pause here to mention that the status of the petitioner as president of the union has been denied and a vote of no confidence is stated to have been passed against him in a meeting held on 30-5-1993 (Annexure B). It is not denied that transfer of any member of the union does not essentially involve violation of the provisions of section 15(a)(d) of the I.R.O. Which deals with cases of unfair labour practice on the part of employer and places restriction on his powers to 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 is or proposes to become, or seeks to persuade any other person to become, a member or officer of a trade union, or participate in the promotion, formation or activities of a trade union. In the instant case, the petitioner has failed to point out that due to his trade union affiliations the transfer was made as a measure of victimisation. It is not denied that law does not give unrestricted licence to office-bearers/members of the union that they cannot be transferred by the management. The transfer can be ordered at any time and at any place in the interest of the management and it cannot be avoided in the name of union activities. The petitioner can continue his activities during his posting in the Head Office. The ruling cited on behalf of the petitioner (1992 SCM R 505) is distinguishable and has no bearing on the present case. The petitioner admittedly had made no representation against his appointment order dated 20-9-1984 (Annexure A). In the circumstances, the petitioner should not grudge the transfer order. He is legally and morally bound to obey it. On the one hand, the petitioner appears in Courts in connection with his cases whereas on the other, he refuses to join duty at his new place of posting, on the plea of sickness. This conduct of the petitioner is clearly indicative of the fact that he is no more interested in the job. This reluctance on the part of the petitioner disentitles him for grant of discretionary relief.

8. The Courts are always hesitant to grant stay orders in transfer matters, where the transferee comes to the Court with unclean hands, as has been done in the present case.

9. Now few words about jurisdiction of N.I.R.C. To interfere in transfer cases.

10. The jurisdiction of the Commission is confined to the cases falling under the scope of section 15 of the Ordinance and nothing beyond that It implies that in cases of victimisation for any reason other than the trade union activities this Commission will have no jurisdiction. The allegations made in the petition which appear to be general and sweeping in nature, even if they are permitted to stand do not make a prima facie case of unfair labour practice. The existence of unfair labour practice is prerequisite for proceeding with a case under clause (g) of subsection (8) of section 22-A of the I.R.O. This jurisdictional prerequisite is missing in the present case.

11. In view of what has gone above I feel that the petitioner has been transferred in good faith and the reasons made out for the transfer are reasonable and do not appear to be tainted with malice or extraneous considerations. The impugned order cannot be faulted either in law or discretion. The petition fails which is hereby dismissed. Stay recalled.