ENGINEER BISMILLAH KAKAR vs FEDERATION OF PAKISTAN, through Secretary, Ministry of Industries and Production S

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ENGINEER BISMILLAH KAKAR VS FEDERATION OF PAKISTAN, through Secretary, Ministry of Industries and Production Ss.1(3)(b), 2(ix)(e), 2(xxxiii), 3, 17 & 33---Petitioner initially appointed as Deputy Manager in regional office of Pakistan Industrial Technical Assistance Center (PITAC) and after being transferred to headquarter in another city allowed to serve on acting charge basis as Deputy Director, was transferred back to the said regional office with immediate effect---Petitioner contended that he was proposed President of the PITAC Officers Welfare Association (POWA); that his registration was pending with the Registrar Trade Unions (RTU) at National Industrial Relations Commission (NIRC); that during pendency of the same, he could not be transferred to any other place without his consent, save with approval of RTU; that there was no post of grade 18 officer available in the Regional Office in the said region; that he could not be transferred as such in view of Ss. 3 & 17 of National Industrial Relations Act, 2012; and that transfer order was passed with mala fide intention and ulterior motives in order to prevent the petitioner from invoking jurisdiction of RTU and NIRC for registration of the said union---Respondent/PITAC officials stated that petitioner was transferred from Head Office to Regional Office where he was initially appointed to manage the affairs of the same project (relating to CPEC) he was appointed for; that his services were required at the site because no other alternate was available; that he had been transferred on administrative grounds (sheer necessity); that petitioner could continue his efforts relating to registration of POWA; that petitioner was holding an acting charge in BS-18 whereas he was actually a BS-17 employee; and that petitioner was governed by non-statutory terms and conditions of service and alternative remedy was available to him---Held, that petitioner could not show/point out any statutory rules applicable to him or governing his service---Petitioner claimed relief on basis of violation of a statutory right provided under the provision of Ss. 3 & 17 of the National Industrial Relations Act, 2012---Whether the petitioner would fall within the definition of employer or "workman" required deeper appreciation of the inside working of PITAC along with the detailed analysis of the charge of the post held by the petitioner and nature of duties performed by him, which was not permissible under the Constitutional jurisdiction of High Court especially when the parties were not concurring with ---Disputed question of fact could not be determined in Constitutional jurisdiction of High Court---Right under S.17 of the Act, was available only to the members/officers of the trade union of workmen and not to the employer---If the petitioner was an employer as per the definition provided in the Act, then S.17 of the Act would not be applicable to him and he could not seek its enforcement through Constitutional jurisdiction of High Court---If the petitioner was a worker or "workman", then the provisions of S.17 would be applicable to his case---Petitioner alleged that he had been transferred with mala fide intention to prevent him from participation in trade union activities which had specifically been mentioned as unfair labour practices on the part of the employers in terms of S.31(d)(i)&(ii) of Act, 2012 and S.33 thereof provided remedy against unfair labour practice by the respondent/department before NIRC---Representation of petitioner had already been turned down for not being maintainable---Constitutional petition was disposed of accordingly with the observation that the petitioner may seek appropriate remedy available to him under the law.

ENGINEER BISMILLAH KAKAR vs FEDERATION OF PAKISTAN, through Secretary, Ministry of Industries and Production Ss — 2022 PLC 141 LAHORE-HIGH-COURT-LAHORE

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