Sunday, 19 January 2014

Unfair Labor Practice Petition against PIA

PLJ 2013 Tr.C. (NIRC) 144
[National Industrial Relations Commission, Islamabad]
Present: Raja Fayyaz Ahmed, Chairman
JALIL-UR-REHMAN & others--Petitioners
versus
PAKISTAN INTERNATIONAL AIRLINES CORPORATION through its District Manager, Islamabad & others--Respondents
Case Nos. 4A(25), 4A(26), 4A(27) of 2012, decided on 20.3.2013.
PIAC Employees (Service & Discipline) Regulations, 1995--
----Regul. 18--Industrial Relations Ordinance, 2011, S. 31(1)(a)--Transfer of employees from one station to another--Unfair labour practice--Every employee shall be liable to be transferred within and outside Pakistan in any establishment/office of corporation--Validity--Undisputedly, transfer of an employee from one office to another or to any of its station within or outside Pakistan is prerogative of employer corporation for being in judgment to decide as to how best can it utilize services of its employees in interest of establishment and in public interest and can be resorted to exigencies of service, which power is vested in corporation, exercisable by its management and can hardly be substituted by any other authority or forum unless a case of unfair labour practice pin pointing likelihood of victimization is made out by some cogent and convincing material within parameters relating to unfair labour practice on part of employer--Mere allegation of general nature on ground of unfairlabour practice would not constitute unfair labour practice to invoke jurisdiction of commission--Impugned adjustments from one office to another within Islamabad or transfer from Islamabad to Karachi had been result of any unfair labour practice on part of management--Petition was dismissed.            [P. 150] A & B
Nemo for Petitioner.
Mr. Mushtaq Hussain Bhatti, Advocate for Respondents.
Date of hearing: 14.3.2013.
Order
As identical points of law and facts are involved in these three (3) cases therefore, the same are disposed of by this single order.
2.  Each of these petitions has been instituted under Section 54(e) of Industrial Relations Ordinance, 2011 hereinafter referred to as the Ordinance; containing identical reliefs, reproduced herein below:
"It is therefore, respectfully prayed that this Hon'able Court may kindly be pleased to pass in order directing the respondent not to comment any act of unfair labourpractice and not to cause any injury to the employment of the petitioner by way of dismissal, discharge, removal, termination, transfer, post and shifting in any manner and if any such order has been passed the same may be set aside having been based upon unfair labour practice."
3.  Functions of the Commission have been described in Section 54 of the Ordinance ibid whereas; the additional powers of the Commission have been given in Section 57 of the Ordinance. By virtue of Section 54 (e) of the Ordinance, the Commission has been invested with the powers to deal with cases of unfair labourpractices specified in Sections 31 and 32 respectively on the part of the employers, or trade union of employers, workmen or other person or trade union of workmen from acting in any manner individually or collectively, as specified in Section 31(1) and Section 32(1) of the Ordinance, meant to prevent the commission of unfairlabour practice. Section 32 of the Ordinance deals with the cases relating to unfair labour practices on the part of workmen whereas; under Section 33 relates to individual grievances and a worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop steward or collective bargaining agent, within ninety days of the day on which cause of such grievance arose.
In the present petitions as it appears from pleadings, Section 31 of the Ordinance has been invoked read with Section 54(e) of the Ordinance which relates to the functions of the Commission. The term unfair labour practice has not been defined in the Ordinance hence, the same shall be taken in its ordinary meaning with reference to the context in which the same has been used in the statute. The unfair labour practices have been enumerated in Section 31 of the Ordinance on the part of the employers or trade union of employers and a person acting on behalf of either of them. Sub-section (1) of Section 31 of the Ordinance has been couched with a negative mandate that no employer or trade union of employers and no person acting on behalf of either of them shall commit any of the act specified by sub-section (1) of Section 31 of the Ordinance reproduced herein below for convenience and reference:--
"31.  Unfair labour practice on the part of employers.--(1) No employer or trade union of employers and no person acting on behalf of either shall--
(a)        impose any condition in a contract of employment seeking to restrain the right of a person who is a party to such contract to join a trade union or continue his membership of a trade union;
(b)        refuse to employ or refuse to continue to employ any person on the ground that such person is, or is not a member or officer of a trade union;
(c)        discriminate against any person in regard to any employment, promotion, condition of employment or working condition on the ground that such person is, or is not, a member or officer of a trade union;
(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; or
(ii)        participates in the promotion, formation or activities of a trade union;
(e)        induce any person to refrain from becoming, or to cease to be a member or officer of a trade union, by conferring or offering to confer any advantage on, or by procuring or offering to procure any advantage for such person or any other person;
(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;
(g)        interfere with or in any way influence the balloting for the determination of the Collective Bargaining Agent;
(h)        recruit any new workman during the period of a notice of strike under Section 41 or during the currency of a strike which is not illegal except where the Conciliator having been satisfied that complete cessation of work is likely to cause serious damage to the machinery or installation, has permitted temporary employment of a limited number of workmen in the section where the damage is likely to occur;
(i)         close the whole of the establishment in contravention of Standing Order 11-A of the Industrial and Commercial Employment (Standing Orders] Ordinance, 1968 (W.P. Ord. VI of 1968); or
(j)         Commence, continue, instigate or incite others to take part in, or expend or supply money or otherwise act in furtherance or support of, an illegal lockout.
(2)  Nothing is sub-section (1) shall be deemed to preclude an employer from requiring that a person upon his appointment or promotion to managerial position shall cease to be, and shall be disqualified from being, a member or officer of a trade union of workmen."
4.  The pleadings of the petitioners indicate that the provisions of clause (d) of sub-section (1) of Section 31 of the Ordinance has been pressed into service therefore, it has to be seen, as to whether the said provision of the law stands attracted in the facts and circumstances of the case. As per mandate of sub-section (1) of Section 31 of the Ordinance, the employer or trade union of employer has been stopped to dismiss, discharge or remove from employment or transfer a workman or injure or threaten to dismiss, discharge or remove from service or transfer a worker 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 participates in the promotion, formation or activities of a trade union.
5.  It has been alleged by each of the petitioner that he is a trade unionist basically and was active member of Peoples Unity of PIAC Employees but on account of certain differences, a group of active members and office bearers of Peoples Unity of PIAC Employees joined hands with the United Workers Union of PIAC Employees alongwith Central President Mr. Kamran Chaudhry. It is stated that the petitioners alongwith other colleagues contested the secret ballot from the platform of United Workers Union and they lost the referendum. Mr. Jalil-ur-Rehman Mirza (petitioner) added that he was designated as convener for the Rawalpindi Division.
The case of the petitioners is that on the influence of the sitting CBA, the management taking calculated measures by resorting to unfair labour practice against all the active members of the union who disassociated from Peoples Unity of PIAC Employees and joined hands with United Workers Union of PIAC Employees to which the petitioners were on the top, fell victims of and as a result their transfer orders are in the offing.
6.  The learned Member of the Commission after preliminary hearing on 13.03.2012 directed the respondent-management not to commit any act of unfair labourpractice and meanwhile status quo in respect of services of the petitioners was ordered to be maintained till next date.
7.  The respondent-corporation has seriously contested the cases of the petitioner by filing written-statements in each case on various grounds of law and facts. It has been contended in the written-statement that wild and bald allegations of unfair labour practice have been levelled in absence of any specific act or any instance of unfair labour practice on the part of the management which per se does not constitute unfair labour practice nor every kind of grievance for whatever reason is relatable to unfair labour practice. The allegation of unfair labour practice is a serious charge against the employer which must be properly and adequately pleaded giving all particulars on which such allegation has been based which is completely wanting in these cases. Transfer being the prerogative of the employer useable in the best interest of the establishment for utilizing services of its employees which cannot been avoided in the name of the trade union activities. The transfer orders of the petitioners M/s. Jalil-ur-Rehman, Raja Nasir Nasim, M. Wahab Jamal and Asim S. Bangesh in (Petition No. 4A(25)/2012 and No. 4A(26)/2012) are in fact not the transfers from one station to another rather are local adjustments from one office of the establishment to another in Islamabad. In the case of three petitioners (Petition No. 4A(26)/2012) they have been transferred from Benazir Bhutto International Airport, Islamabad to Sales Office, Blue Area, Islamabad or adjusted at the Islamabad Airport from one department to another and within the same premises in the best interest of the establishment, does not on any ground can be said to be or constitutes unfair labour practice. Whereas; Jalil-ur-Rehman, petitioner in (Petition No. 4A(25)/2012) has been locally transferred from BBI AirportIslamabad to Sales Office, Blue Area, Islamabad in the interest of the establishment. However; Mr. Adil Zaman petitioner in (Petition No. 4A(27)/2012) has been transferred fromIslamabad to Karachi in the exigencies of service and in the interest of the respondent-corporation. The learned Counsel for the respondent-corporation submitted during course of arguments that Mr. Adil Zaman, petitioner remained throughout since his induction in service remained posted at Islamabad.
The learned Counsel for the respondents mainly reiterated the grounds of contest taken in the written-statements filed in these cases. He vehemently argued that the no case of unfair labour practice has been made out. In the ordinary course of business of the respondent corporation and in the exigencies of service and in its best interest of the establishment, impugned transfer orders were passed whereas; M/s. Jalil-ur-Rehman, Raja Nasir Nasim, M. Wahab Jamal and Asim S. Bangesh in (Petition No. 4A(25)/2012 and No. 4A(26)/2012) have been locally adjusted from one office of the respondent-corporation to another within Islamabad. It has been explained by the learned Counsel that petitioner Raja Nasir Nasim being a communication supervisor has been adjusted at Airport to Data Communication Section, Mr. Wahad Jamal is related to transportation affairs has been shifted to Booking Office, Blue Area, Islamabad and Mr. Asim S. Bangesh has also been locally adjusted at the Airport to TOM Office being traffic related job while Adil Zaman did not belong to the ground staff services and being a Crew staff member has now been vide his impugned transfer order to be based at Karachi who since inception in service remained at Islamabad and all such transfers and adjustments have been made in the best interest of the respondent-establishment to make optimum use of services in the public interest and; the pleas to the contrary taken in the pleadings on the part of the petitioners has been simply hypothetical, general in nature and not supported by any instance of alleged act of unfair labour practice on the part of the management. In any case, according to the learned Counsel to transfer its employees from one station to another is the prerogative of the employer which has been exercised objectively and in the interest of the establishment and in such behalf the learned Counsel referred to Regulation 18 of PIAC Employees (Service & Discipline) Regulations, 1995 which provides that every employee shall be liable to be transferred within and outside Pakistan in any establishment/office or station of the corporation. The learned Counsel submitted that although; the status qua order was operative till next date yet, on account of pendency of the case, the management did not implement such orders of adjustments and transfer which in the circumstances of case is operating harsh in rendering effective services. Reliance has been placed on reported judgments i.e. Iftikhar Ahmed and others Versus President, National Bank of Pakistan and others 1988 PLD (S.C.) 53); NazarMuhammad General Monager, TIP Haripur and another Versus Ghulam Asghar and 4 others (1988 PLC 923) and Muhammad Nawaz Versus General Manager (Planning), WAPDA, Lahore and another (1994 PLC 140).
8.  The pleadings of the parties, the documents on record, Regulation No. 18 of the above-mentioned Regulations and the case law cited on behalf of the respondents by the learned Counsel have been considered in the light of relevant provisions of the Ordinance referred to hereinabove. Undisputedly transfer of an employee from one office to another or to any of its establishment/office or to a station within or outside Pakistan is the prerogative of the employer-corporation for being in the judgment to decide as to how best can it utilize the services of its employees in the interest of the establishment and in the public interest and can also be resorted to in the exigencies of service, which power is vested in the corporation, exercisable by its management and can hardly be substituted by any other authority or forum unless a case of unfair labour practice pin pointing the likelihood of victimization is made out supported by some cogent and convincing material on record within the parameters specified by Section 31 ibid relating to unfair labour practice on the part of the employer and in these cases within the meaning of clause (a) of sub-section (1) of Section 31 of the Ordinance no material has been brought on record for the last more-than eleven months to show that the impugned orders or as per their case, the petitioners are likely to be made victims of unfair labour practice within the purview of Section 31 of the Ordinance. Mere allegation of general nature on the ground of unfair labour practice per se would not constitute unfair labour practice, to invoke the jurisdiction of the Commission. The allegations of unfair labourpractice pleaded on behalf of the petitioners is not supported or supplemented by any material on record, in absence whereof it can hardly be assumed that the impugned adjustments from one office to another within Islamabad or transfer Mr. Adil Zaman from Islamabad to Karachi has been the result of any unfair labourpractice on the part of the management or that the same was motivated on account of unfair labour practice hence, for the forging reasons, these petitions being without any substance are dismissed.
(R.A.)  ?????

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