' The order dated 23-10-1993 of the National Industrial Relations Commission (for short the_N.I.R.C.) has been assailed by the National Savings Organization through its Director-General, and five others. The facts are set out hereunder in requisite details.
2. Vide order dated 5-9-1991, 28 Officials of the Directorate of National Savings Lahore, including respondents Nos.3, 4 and 6 were transferred from the different National Savings Centres of Lahore to the Centres at Pattoki, Raiwind and Kasur, while respondent No,5 was transferred from Islampura Lahore to Krishan Nagar, Lahore. Vide order dated 7-9.4991, services of respondent No,7, a Lower Division Clerk, were terminated and he was reverted as a Gunman. Respondents Nos.3 to 7 alongwith the National. Savings Staff Union, respondent No,2, approached the learned Labour Court, in separate petitions assailing the aforesaid orders. They also claimed a temporary injunction. Vide separate orders dated 19-19-1991, the learned Labour Court No,II, Lahore, found that it had no territorial jurisdiction and, therefore, the petitioners were ordered to be returned. These were, accordingly, presented before the learned Labour Court No,III, Lahore. The applications of respondents for interim relief were dismissed vide a single order dated 14-1-1992. The said order was assailed in separate revision petitions by respondents Nos.3 to 7 before the learned Labour Appellate Tribunal, which were allowed vide order dated 11-2-1992 and the applications of the respondents Nos.3 to 7 for temporary injunction were remanded to the learned Labour Court. In the post-remand proceedings, the applications of respondents Nos.3 to 7 for the grant of temporary injunction were dismissed vide separate orders dated 13-2-1995 with the fording that the respondents were civil servant and the Labour Court had no jurisdiction. Against the order dated 13-2-1995, separate revision petitions were filed by respondents Nos.3 to 6 and respondent No,7 before the learned Labour Appellate Tribunal, which were dismissed vide order dated 2-3-2000.
Against the order dated 2-3-2000, respondents Nos.3 to 6 approached this Court in W.P. No, 6135 of 2000, while respondent No,7 filed W.P. No,8517 of 2000. The aoresaid writ petitions were dismissed by consolidated judgment dated 28-3-2002 of this Court.
3. Meanwhile, on 15-10-1995, respondents Nos.3 to 7 and the National Savings Staff Union filed a petition before the N.I.R.C. Under section 22-A (8)(g)(9) read with section 15(1)(c) and (d) of the Industrial Relations Ordinance, 1969. The said petition came up for hearing before the learned Chairman of the N.I.R.C. On 23-10-19g5, or which date, it was admitted to regular hearing and it was directed that in the meantime pay of the petitioners be paid and they should also be alowed to perform their duties till the disposal of the said petition. The aforesaid order of the learned Chairman has been assailed in this petition.
4. The learned Deputy Attorney-General contends that as employees of National Savings Organization, respondents Nos.3 to 7 were civil servants, it was so held by this. Court while deciding W.P. No,6133 of 2000 and W.P. No,8517 of 2000 and therefore, by virtue of Article 212 of the Constitution, the N.I.R.C. Had no jurisdcition. The judgment of the Hon'ble Supreme Court of Pakistan in Faqir Muhammad v. The Director of National Savings, Multan Region, Multan (PLD 1992 SC 127) was relied upon. It was next contended that section 2-A was inserted in the Service Tribunals Act, 1973, w,e,f, 10-6-1997 with the result that in any case the petition pending, before the N.I.R.C. Abated by virtue of section 6 of the Service Tribunal Act, 1973. It was next maintained that the order of the learned Chairman of the N.I.R.C. Being wholly without jurisdiction even the initial assumption of jurisdiction by the N.I.R.C. Could be challenged. Reliance was placed on Sindh Employees Social Security Instituion v. Dr. Mumtaz Ali Taj and another (PLD 1975 SC 450). It was next contended that after the disposal of the petitions by the learned Labour Court vide order dated 19-10-1991, respondents Nos.3 to 7 were relieved from the posts they held and the effect of the impugned order of the learned Chairman, N.I.R.C. Is restoration of status qud ante, which was not permissible in law.
Reliance is placed on Islamic Republic of Pakistan through Secretary Establishment Division, Islambad and others v. Muhammad Zaman Khan and others (1997 SCM R 1508). Notification dated 18-9-1990 of the Federal Government (Finance Division) issued under "special provision" occurring below sub-clause (d) of clause (viii) of section 2 of the Industrial Relations Ordinance, 1969, was also relied upon to contend that inter alia, the Lower Division Clerks were declared as "employer" for the purpose of the said Ordinance.
5. On the other hand, the learned counsel for respondents Nos.2 to 7 contended that the respondents Nos.3 to 7 were office-bearers of the National Savings Staff Union, Lahore Region, they were victimized by their transfer out of Lahore, which constituted an unfair labour practice and, therefore, the N.I.R.C. Had the jurisdiction in the matter. It is further contended that on 28-6-1989, a notice of strike was issued by the Staff Union, on which proceedings were initiated and to frustrate the said strike notice, orders of transfer of respondents Nos.3 to 6 and reversion of respondent No,7 were passed.
6. It was next contended that even a person serving in the Government Department could be a "workman". He also relied on an observations of one of the Hon'ble Judges of the Supreme Court of Pakistan in the case of Faqir Muhammad (supra). He next contended that without prejudice to the above submission, even if respondents Nos.3 to 7 could be said to be civil servants, for the purposes of Service Tribunals Act, they could not approach the learned Federal Service Tribunal because section 3 of the Service Tribunals Act, 1973, contemplates constitution of more than one Service Tribunal and according to section 4(2Xa), thereof an appeal lies before the Service Tribunal constituted under section 3(3) of the said Act against an order directing imposition of a major penalty, while in any other case, an appeal lies to the Service Tribunal contemplated under section 3(7) of the said Act and the Tribunal contemplated by section 3(7) of the said Act had not been constituted. It was next contended that the impugned order of the learned Chairman, N.I.R.C. Was in his discretion, the matter was still pending before the and, therefore, no case was made out for exercise of discretionary Constitutional jurisdiction. Reliance was placed on Executive Engineer, Central Civil Division, Pak. P.W.D. Quetta v. Abdul Aziz and others (PLD 1996 SC 610).
7. I have considered the submissions made by the learned counsel for the parties. So far as the status of respondents Nos.3 to 7 as civil servants is concerned, the matter stand concluded by inter-party judgment dated 28-3-2002 of this Court passed in W.P. No,6135 of 2000 and W.P. No,8517 of 2000. In the case of Faqir Muhammad (supra), it was held that the employees of National Savings Organization are civil servants and the Labour Court had no jurisdiction on account of bar of Article 212 of the Constitution which was followed while deciding the aforesaid writ petitions.
8. The question which, however, survive for consideration is whether respondents Nos.3 to 7 could approach the learned Service Tribunal as presently constituted. According to section 3(3), the Service Tribunal shall consist of a Chairman and such number of members not exceedings three each of whom is a person who possesses such qualification as may be prescribed by the rules, while according to section 3(7), a Tribunal established to exercise jurisdiction in respect of specified class or classes of cases may consist of one or more persons in the Service of Pakistan to be appointed by the President. Right of appeal has been created by section 4(1) of the Service Tribunals Act, while the provisions contained in subsection (2) are only limited to the appeals in the cases of imposition of penalties on a civil servant. Subsection (2) of section 4 cannot be read as an exception to section 4(1) of the said Act. According to subsection 4(1) an order in respect of any of the terms and conditions of the service of a civil servant is appealable and the only exceptions are specified in provisos (a)(b). And (e) to section 4(1) of the said Act. The question came up for consideration before the Hon'ble Supreme Court in Government of Balochistan, through Secretary Communication and Works Department, Quetta and 2 others v. Shabbir Ahmad and another (1990 SCM R 1233). In the said case, the contention before the Hon'ble Supreme Court that appeal lies to the Service Tribunal only against imposition of major penalty and an order imposing a minor penalty could be assailed in Constitutional jurisdiction was repelled with the observation that it did not appear to be the expressed object of Article 212 of the Constitution. It was observed therein that section 4(2) of the said Act only referred to the quantum of penalty. The appellate powers under section 4(1) of the said Act are not controlled or limited by the provisions of section 4(2) of the said Act. I am of the view that the expression "in any other case" in section 4(2) of the said Act, refers only to a penalty other than a major penalty and not all cases relating to terms and conditions of a civil servant. The interpretation of section 4(2) of the learned counsel for the respondents, if accepted, would mean that in no other case except a case of major penalty, an appeal would lie to the learned Service Tribunal as presently constituted. It could not be the intention of law that in respect of other terms and conditions, only a Tribunal constituted under section 3(7) of the said Act would be competent to hear the appeals. Reference may be made to the unreported judgment dated 15-7-1991 of the Hon'ble Supreme Court in C.As. Nos.148, .160 and 161 of 1990. In para. 4 of the said judgment, it was observed as follows:-- "Section 3(7) becomes operative only when the President has decided to constitute more than one Tribunal. In the event he establishes only one Tribunal, the provisions of subsection (7) would become irrelevant. As the provisions of section 4(2) are dependant upon the constitution of a Special Tribunal under section 3(7) they too would not become operative unless a Special Tribunal has been constituted. On the other hand, the single Tribunal constituted by the President under section 3(1) will exercise the jurisdiction under section 3(2) in disciplinary matters also."
9. Irrespective of the contention of the learned counsel for the respondents whether they could or could not approach the existing Service Tribunal, I am of the view that in the facts and circumstances of the case, the impugned order was against the settled principles governing grant of a temporary injunction.
10. The impugned orders of transfer and reversions of respondents Nos.3 to 7 were passed respectively on 5-9-1991 and 7-9-1991 and, therefore, grant of interim relief after more than four years was not warranted. Reference may be made to Syed Imran Raza Zaidi, Superintending Engineer, Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab through Services, General Administration and Information Department, Punjab Sercretariat, Lahore and 2 others (1996 SCM R 645) wherein the Hon'ble Supreme Court interfered in the order of the Punjab Service Tribunal, whereby order of transfer of a civil servant was suspended after about 9 months of its being passed. It was observed that neither any irreparable loss to the civil servant was involved by his transfer nor balance of convenience could be said to be in his favour. Therefore, in the present case, grant of interim relief after four years of the passing of the impugned orders, particularlly in view of the contention of the learned Deputy Attorney-Gene-2i that the orders impugned before the N.I.R.C. Had already been implemented, was arbitrary exercise of discretion.
11. Reference may also be made to Islamic Republic of Pakistan through Secretary, Establishment Division, Islamabad and others v. Muhammad Zaman Khan and others (1997 SCM R 1508) in which it was held that the object of passing an interlocutory order was to maintain the situation obtaining on the date when a party concerned approaches the Court and not that a new situation is created.
It was further observed that Court could not grant such interim relief of the nature which will amount to allowing the main case without trial/hearing of the same. The respondents were before the N.I.R.C. To assail the orders of transfer and termination and the impugned order, in fact, amounted to allowing the main relief to the said respondents, which could not have been done. It also amounted to interference in the working of a Government Department.
12. For what has been stated above, the writ petition is allowed and the order dated 23-10-1995 of the learned Chairman, N.I.R.C. Is declared to be without lawful authority. No order as to costs.