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Case No. 12(33) of 1982, decided on 18th May; 1983.

‑‑ Ss. 15, 22‑A & 22‑D read with Criminal Procedure Code (V of 1898), Ss. 236 & 403‑Unfair labour practice‑Prosecution for Complaint filed before Labour Court dismissed for non‑prosecution by complainant‑Subsequent proceedings before National Industrial Relations Commission dismissed by Single Member of Commission on grounds that contents of fresh complaint were same as complained before Labour Court and accused was acquitted for non‑prosecution hence was not liable to be tried again‑In appeal before Full Bench of Commission plea raised that complaint before Labour Court having been dismissed for non‑prosecution and without recording evidence of parties accused could be tried on same facts‑Plea accepted and case remanded.

A I R 1929 Bom. 208 and A I R 1935 Cal. 491 ref.

‑‑ S. 15‑Unfair labour practice‑Transfer of worker Employer insisting on transfer of Rikshaw Mechanic from L to S for 3 months‑One out of only 2 Rikshaws already. transferred to L from S Depot ‑ Facts indicating mens rea on part of employer narrated in complaint‑Member, National Industrial Relations Commission accepting verbal assurance of accused that transfer was only for 3 months and during such period complainant worker will continue to remain governed by all Labour Laws applicable to him‑Order of Single Member dismissing complaint challenged before Full Bench of Commission‑Facts of case. held, indicating that transfer not justified and verbal assurance of employer cannot change law or jurisdiction of Court‑Appeal accepted and case, in circumstances, remanded‑Appeal‑National Industrial Relations Commission‑Industrial Relations Ordinance (XXIII of.1969), Ss. 22‑A & 22‑D.

Naeem Sultan Butt for Appellant.

M. S. Bokhari for the Management.

Date of argument : 18th May, 1983.

‑This appeal submitted by Mr. Azmat Ali son of Ghulam Nabi is directed against the order passed by the learned Member Mr. Mahmood Akhtar on the complaint submitted by the appellant against Noor Elahi, Managing Director, 7‑Up Bottling Company Limited, Lahore and another. The learned Member had dismissed the complaint and recalled the stay order on the grounds that contents of paras. 1 to 14 of the complaint were the same as submit ted by the complainant before the Labour Court which dismissed the complaint and acquitted the accused for non‑prosecution by the complai nant. The learned Member, therefore, came to the conclusion that a per son who has been acquitted of an offence shall not be liable to be tried again for the same offence nor on the same facts in any other offence for which a different charge from the one made against him might have been made under section 236, Cr: P. C. As for the remaining facts of his transfer to Sargodha, on 28th October, 1981 and subsequent disciplinary action the learned Member was of the view that transfer in itself does dot amount to an offence of unfair labour practice unless it is shown that the transfer was made because of the reasons that the complainant participates in the promotion, formation or activities of the trade union and that this has not been shown. The learned Member accepted the assurance given by the respondent that he is being transferred for a period of 3 months because some Rikshaws lying at Sargodha required repair and that during this period of three months, the service of the comp lainant will continue to remain governed by all those Labour laws which apply to his case.

2. The learned Counsel for the appellant submitted that the law as laid down by the superior Courts of Pakistan is that when a case is dismissed for non‑prosecution of the complaint, the accused can be tried on the same facts and that in the case lodged by the complainant before the Labour Court no evidence of the parties was recorded and the case was dismissed for non‑prosecution. He submitted that the provisions of sections 236, Cr. P. C. and 403 were misapplied by the learned Member and that the learned Member was wrong in holding that contents of paras. 1 to 14 cannot be considered as the same were part of the complain lodged by the complainant before the Labour Court. He submitted that paras. 1 to 14 were the chain of events that go to‑explain the mens rea of the part of the respondent.

3. He further submitted that it was an erroneous finding of the Learned Member that transfer in itself does not amount to unfair labour practice, because the transfer letter read with paras. I to 14 establishes beyond any doubt that the appellant's transfer was motivated by his trade union activities. It was also a change in the terms and conditions of service as it restrained the appellant to persued his lawful trade union activities. He submitted that the transfer order was made on 28th October, 1981 and the impugned order was passed on 10th October, 1982 after full one year. The factory at Lahore employs 150 workers but the Sargodha Depot has only two rickshaws. He, therefore, submitted that the verbal assurance given by the Respondent could not change the law. He further submitted that there were only two Rikshaws at Sargodha for which the appellant is being transferred.

4. The learned Counsel for the respondent submitted that the com plaint submitted by the appellant before the Labour Court was dismissed and the accused were acquitted and an acquittal, therefore, bars fresh proceedings. He quoted case law reported in A I R 1929 Born. 208 and A I R 1935 Cal. 491.

5. We have heard the learned Counsel and we feel that the learned Member should have taken into consideration pares: 1 to 14 of the com plaint as these paras. explain the chain of events that go to establish mens rea on the part of the respondent. The fact that there are only two Rikshaws at Sargodha Depot out of which one .has been transferred to Lahore does not justify the transfer of Rikshaw Mechanic to that place 11 for a period of three months. The respondent could get the repairs done at Sargodha instead of getting one person transferred for that purpose to Sargodha, particularly when one Rikshaw from that depot has already been transferred to Lahore. Moreover, the transfer order was issued on 28th October, 1981 and it is not understood as to why the Rikshaws could not be got repaired for such a long time and as to why the respondent is insisting on the transfer of the appellant to that place as if the rikshaws could only be repaired by the appellant and by no body else. We agree with the learned counsel for the appellant that assurances extended by the respondents that the Labour Laws shall continue to apply to the appellant at Sargodha cannot change law or jurisdiction of the Court.

6. In view of the above discussion we allow this appeal and remand the case to learned Member Raja Iftikharullah Khan for disposal.

A. E. Appeal accepted.

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