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Case No. 4‑A(110) of 1985, decided on 14th January, 1986.

‑‑‑Ss. 22‑A(8)(g) & 15(a)(c)‑‑Victimisation plea by employee‑‑No specific instances of such victimisation 'quoted in petition except reference to letter of retirement issued by establishment to such employee‑‑Order of retirement, held, would not amount to victimisation if employee was due to retire in accordance with requirements of law.

1985 P L C 730; 1985 P L C 747; 1984 P L C 1444 and 1982 PLC 764 ref.

‑‑‑Ss. 22‑A & 15(a)(c)‑‑Surplus pool‑‑Creation of‑‑On dissolution of subservient branch of establishment, management of such establishment, held, would be competent to create surplus pool and place employees of dissolved branch of establishment in that pool‑‑Transfer orders of employee to surplus pool and replacement of such employee by senior employee, held, would not be unfair labour practice.

‑‑‑S. 2(xxviii)‑‑Workman‑‑Definition‑‑Scope of‑‑Employee employed in supervisory capacity‑‑National Industrial Relations Commission, declined to go into details whether person employed in supervisory capacity, drawing wages of more than one thousand, was workman or not in view of disposal of petition on other ground, viz. non‑establishment of unfair labour practice.

Malik Mehrban, Legal Representative for Petitioner.

M.G. Saadullah for Respondents.

Date of hearing: 22nd December, 1985.

This petition under section 22‑A(8)(g) read with section 15(a) & (c) of the I.R.O. has been submitted by Ashiq Hussain, Yard Master, against the District Manager, P.R.T.C. (Intercity) G.T.S., Islamabad and the Chief Traffic Officer, P.R.T.C. Lahore. The petitioner is employed as Yard Master and is also Office Secretary of P.R.T.B. National Mazdoor Union, G.T.S. Rawalpindi/ Islamabad. He has stated that since his election as Office Secretary the respondents started victimisation and on 17‑6‑1985 issued a letter retiring from service w.e.f. 30‑8‑1985. It was also stated in the letter that his service is extended till that date and that the petitioner was granted 41 days L.P.R. w.e.f. 21‑7‑1985. He has stated that he could not be retired before reaching the age of 60 years. He has also filed a case before the Commission and the case is fixed for arguments.

2. It has been stated that the Management of P.R.T.C. created a surplus pool in which 242 employees of G.T.S. Rawalpindi/ Islamabad were placed and he was also placed in the surplus pool on 30‑7‑1985. He was the only Yard Master in Islamabad and the sanctioned strength was also only one Yard Master and as such he could not be placed in the surplus pool. The Management of P.R.T.C. signed an agreement with P.R.T.B. National Mazdoor Union on 1‑8‑1985 in which they had agreed to absorb all the staff declared surplus within a period of 2 months. The Management, however, did not honour this agreement. An application was moved before the Commission and the case is fixed before the learned Member Mr. Mahmood Akhtar. It has been stated that the petitioner was victimised by order of retirement after election as Office Secretary and secondly he was placed in the surplus pool although he has been regularly performing his duties. He h stated that on 30‑9‑1985 the respondent No. 2 issued an order of transfer of Mir Wali Khan, Yard Master, P.R.T.C. (Intercity) Depot Sialkot to G.T.S. Islamabad. 1 / 8 and the District Manager, Islamabad has been ordered not to take duty from him and place him on spas list. The said Mir Wali Khan was transferred from Islamabad to Sialkot in January, 1984. He had obtained stay order from the Commission, which was ultimately vacated. Mir Wali Khan is the Vice‑President of the rival union. The order of the transfer has been made intentional to let down the union of the petitioner in order to stop his union to pursue cases before the Commission for enforcement of the agreement, which was reached on 1‑8‑1985 and also against the illegal transfer of workers. It was, therefore, prayed that the Commission may adjudicate in the matter and declare the order, dated 30‑9‑1985 as illegal an, void.

3. The learned Counsel for the respondents submitted comment; and raised preliminary objections that the petitioner was employed in a supervisory capacity and was drawing Rs.1,399 p.m. as wages. More than 230 workers including Assistant Yard Master, Drivers, and Conductors were directly working under him and he is supervision their work and as such he does not fall in the definition of workman as given in section 2 (xxviii) of the I.R.O. This being the position the petitioner had no locus standi to invoke the jurisdiction of the Commission. The order of Mir Wali Khan was issued on 30‑9‑1985 and he reported for duty or. 2‑10‑1985 but the petitioner refused to hand over the charge to him and got stay order on 6‑10‑1985. The transfer order had, therefore, already been implemented and as such status quo ante could not be granted. He also stated that the transfer is an inherent right of the employers in exigencies of service for administrative reasons in the best interest of service and that no right guaranteed or secured to the petitioner by any law, award or settlement has been infringed and that no employee can claim duty on any particular post as a matter of right and as such the petition was not legally maintainable. It was stated that the petitioner had become the office‑bearer of the P.R.T.B. National Mazdoor Union after he came to know about the order of retirement. It was pointed out that the order of retirement was issued under the Departmental Rules and that the age of retirement is 55 years and not 60 years as claimed by the petitioner.

4. He further stated that the Government of the Punjab dissolved the P.R.T.B. on 9‑5‑1985 and placed all officers and employees of defunct‑Board in a surplus pool to be maintained by the Government of the Punjab for the purposes of payment of wages till their adjustment in other organisations unless it was otherwise decided to dispense with their services as far as possible in accordance with the terms and conditions admissible to them prior to the dissolution of the Board. The powers of the Government were delegated to Mr. Muhammad Afzal Kahut who was appointed as Administrator P.R.T.B. Employees Surplus Pool. In exercise of these powers the Managing Director and Administrator selected the staff as required for the P.R.T.C. and that there was no question of victimisation for the trade union activities. The petitioner became the Office Secretary of the Union in June, 1985 whereas the Surplus Pool was created in May, 1985. He further pointed out that the validity of the agreement, dated 1‑8‑1985 has also been challenged as it was entered into by using coercion, intimidation and pressure and the matter was now sub judice before the learned Member Mr. Mahmood Akhtar. It was denied' that the transfer of Mir Wall Khan had anything to do with the union activities of the petitioner. He stated that Mir Wall Khan was transferred from Islamabad to Sialkot and since he had already joined on 2‑10‑1985 the petitioner had refused to hand over the charge to him and has defied the orders of the respondents. He prayed that the application may be dismissed with costs.

5. I have heard the arguments of the parties on 22‑12‑1985. The learned representative for the petitioner stated that the unions in the organisation still exist unless the proceedings under section 10 of the I.R.O. are taken and registration of the unions is cancelled. He pointed out that any interference in trade union activities will amount to unfair labour practice. He stated that by placing the petitioner in surplus pool, the respondent has discriminated against him in service conditions and has committed an act of unfair labour practice. The learned Counsel for the respondent further stated that the order of transfer rims issued on 30‑9‑1985 and that Mir Vali Khan was relieved on 1‑10‑1985 and he arrived in Islamabad on 2‑10‑1985 whereas the stay order was issued on 6‑10‑1985. He stated that status quo ante cannot be granted and cited 1985 P L C 730. He further pointed out that the interim relief cannot be granted and cited 1985 P L C 747 and 1984 P L C 1444. The petitioner has completed 55 years service and according to the rules he was to be retired from service. He stated that by placing the petitioner in surplus pool the respondent did not remove or retrench him from service. He further pointed out that Mir Wall Khan was senior to him and as such he could not be placed in surplus pool and that no employee can claim right of duty vide 1982 P L C 764.

6. I find that the petitioner was elected as Office Secretary of the Union in order to show him as the office‑bearer and to get protection under the I.R.O. No specific instances of victimisation of the petitioner have been quoted in the petition except that he was issued letter of retirement and allowed 41 days L.P.R. from 21‑7‑1985. Certainly the respondent could not retire him at the age of 55 years, had the Rules provided for the age of 60 years for retirement. The learned representative has stated that the order of retirement was illegal, inoperative and bad in the eyes of law but he had not mentioned any reasons for this argument. He has also stated that by retirement, the respondent has victimised him. This is no victimisation. If a person is .due to retire the order of retirement shall have to be passed and that cannot be treated as an act of victimisation.

7. The Management of P. R. T. C. was quite competent to create a surplus pool and place the petitioner in that pool. The respondent has given reasons to show that Mir Wali Khan being senior to him was appointed in his place. The fact relating to the creation of surplus pool and agreement signed on 1‑8‑1985 are extraneous matters and have nothing to do with the application of the petitioner. I do not agree with the contentions of the petitioner that because he was the only Yard Master in Islamabad he could not be placed in the surplus pool as a person who is senior to him has the right to be posted in his place in view of the joint seniority of the post of Yard Masters and this cannot be treated as an act of unfair labour practice. It has been mentioned by the petitioner that Mir Wali Khan is the Vice‑President of the rival union and this shows that the Management have transferred the Vice‑President of the rival union from Sialkot to Islamabad and Mir Wall Khan could have also come to the Commission claiming that he has been transferred as an act of unfair labour practice. The petitioner has stated that Mir Wali Khan has been transferred to let down their union as his union has to fight cases before the Commission for enforcement of the agreement, which was reached on 1‑8‑1985. How can a Vice‑President of the rival union stop the petitioner to pursue the union matters before the Commission or to stop them from filing cases against illegal transfers.

8. Apart from the above‑noted facts, the learned counsel for the respondent has vehemently asserted that the petitioner is not a workman as he is employed in a supervisory capacity and drawing wages of 88.1,399 p.m. He has stated that more than 230 workers including Assistant Yard Masters, Drivers and Conductors are directly working C under his supervision and as such he does not fall within the definition of worker as envisaged in section 2(xxviii) of the I.R.O. I do not want to go into the details as to whether he is a workman or not but in view of the discussions noted above I find that the petitioner has failed to make out any case of unfair labour practice. The petition is, therefore, dismissed and the stay order is recalled.

A.A.

Petition dismissed.

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