This is an appeal under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968 (hereinafter called the Ordinance), against an order of the learned Chairman of the First West Pakistan Industrial Court, Karachi, dated the 19th of May 1969. The appeal arises in the following circumstances.
2. The respondent, Abdul Hafiz, made an application under section 38 of the Ordinance challenging his transfer from Karachi to Jacobabad. The respondent is a Godown Clerk of the appellant Bank.
The respondent claimed to be the President of the Employees' Union of the Bank.
3. The respondent made an application on the same day, i.e., on 19th May 1969, when he filed an application under section 38 of the Ordinance with a prayer that the Court may stay the operation of the order of his transfer. The learned Industrial Court on the same day issued an interim injunction restraining the Bank from transferring the respondent and fixed the case for disposal on l6th of June 1969. On the next day, Mr. Masood Mirza, the learned Representative for the appellant made an application before the Court for withdrawing its order dated the 19th of May 1969. The Court issued notice to the other party for 5tb of June 1969. The Court however, handed over the charge on the 20th of May 1769. It appears to me that the appellant thinking that there being no Industrial Court at Karachi his application will remain pending for an indefinite period, filed an appeal to this Court on May 22, 1969. The appeal was admitted and notice to the other side was issued.
4. A preliminary objection has been raised by Malik Muhammad Saeed, Advocate, who is assisted by Mr. M. M. Jillani, for the respondent, that no appeal lies. This is an important question for determination. On the other hand, Mr. Massood Mirza, the learned Representative for the appellant, who is assisted by Mr. Z. H. Siddiqui, strenuously contended that an appeal is maintainable.
5. The question whether an appeal is maintainable or riot will depend upon the provisions of the Industrial Disputes Ordinance itself. Section 16 of the Ordinance provides for appeal against certain orders. In this case, it is important to consider section 16(1) (a).
"16(1) An appeal shall lie to the Tribunal-
(a) against an award given under clause (b) of subsection (1) of section 15, within thirty days of the announcement of the , award,"
There is no provision under section 16, under which the impugned order could be appealable. The question is whether this is an award within the meaning of section 15(1)(b). It would be useful to reproduce section 15(t). It reads as under: - "15(1). The decisions of the Court: under section 26 or section 37, and the awards of the Court shall be given in writing signed by the Chairman, and
(a) where the Central Government or the Provincial Govern--ment is a party to the industrial dispute, two copies thereof shall immediately be forwarded to Government ; and
(b) in other cases, announced in Court and two 'copies thereof forwarded to the Director.
6. It is clear from the language of section 15(1) of the Ordinance, reproduced above, that it has to lie a decision of the Court from which an appeal is maintainable under section 16(1)(a) ' of the Ordinance.
7. Mr. Masood Mirza, the learned Representative for the appellant contended that the Interim Order passed by the Court on 19th of May 1969, restraining the transfer of the appellant from one place to another is a decision. I have very carefully considered this aspect of the case and am of the view that in, order that a decision given by the Court may be termed al decision or an award, it is necessary that the other side should be heard and Court may give its view on the matters in dispute. In the present case, the respondent thought it necessary to move the Industrial Court for an Interim Order to stay his transfer. The Court in the circumstances of the case, perhaps, could not wait to i53ue notice to the other side. It would have been much better if the Court, before issuing an order stay in the operation of the transfer order by the Bank, had issued notice to the other side. In such matters, unless the aggrieved party is able to make out a case that the order will become effective on (sic) Interim Order is passed by the Court, the Court should only issue notice. In the present case the Bank has already passed on order for transfer. The Court could surely wait for another day or two before passing an order staying the transfer order. I have made these observations for future guidance of the Courts in such matters. To grant an Interim Order, as it has been done in the present case, amounts to grant--ing the application itself.
8. As I have already observed that every order passed by the Industrial Court cannot amount to be a decision is, beyond dispute. The Industrial Courts, for instance, may adjourn the case from one day to another or may summon certain witnesses and pass some other orders. These orders cannot be said to be decisions. An order, in order to be called a decision by the Court presupposes the application of the mind of the Judge to the submission made by both the parties in the case --'
In the present case the Industrial Court made an Interim Order considering the urgency of the prayer without hearing the other side. In fact, Mr. Masood Mirza, on behalf of the appellant, had approached the Court for withdrawing the Interim Order, which it had passed on 19th of May 1969. I would say that Mr. Masood Mirza rightly approached the Court before filing an appeal against the Interim Order.
9. This Court would be reluctant to usurp the function of the Industrial Courts. The order passed by this Court is a final order. It cannot be challenged before any other Judicial Body except by way of Petition under Article 98 of the Constitution: i must have the benefit of the Industrial Court's views. If I were to hear an appeal against an Interim Order it would amount to reducing this Court to an Industrial Court. The affidavit and the counter-affidavits that have been now filed before me should have properly been considered by the Industrial Court. It is only after the Industrial Court had given its decision after considering the affidavit counter-affidavit and rejoinder that an appeal against such a decision is competent.
10. It .is unfortunate that there is no Industrial Court functioning at Karachi these days. The mattes is a very simple one. If there was an Industrial Court at Karachi it would have been disposed of within a few hours time. I have restrained from giving any opinion on the merits of the case. It was contended by Mr. Masood Mirza that it is an ordinary Incident of service that an employee is liable to transfer from one place to another. Moreover, in the particular case under the term of employment itself the respondent is likely to be transferred. On the other band, Malik Saeed contended conceding the proposition that an employee can be transferred from one place to another that an employee, if he is an official of the Union, can challenge the order of his transfer as being mala fide. The question whether the order was mala fide is question of fact which would be determined by the Industrial Court at the proper time.
11. I would hold that the appeal is not maintainable and it is, accordingly, disposed of. I would order that whenever -the Industrial Court starts functioning at Karachi the office should bring this case to his notice for very early disposal.