' MUHAMMAD ZAHOORUL HAQ, J.-This is a Constitutional Petition directed against the order passed by the respondent No, 1, dated 24th October, 1982 granting ad interim injunction to respondent No, 2 against his transfer from Hyderabad Zone to Sukkur Zone and the consequent order, dated 22nd December, 1982 passed by the same respondent confirming the ad interim injunction granted to respondent No,
2. The facts in this case are not very complicated. The petitioners 1 and 2 are the senior officers of the National Bank of Pakistan, Principal Office at Hyderabad while respondent No, 2 is a person who had been working as a clerk for some time in the National Bank upto 1975 and thereafter he was promoted as an officer and had continued at Hyderabad. The respondent No, 2 was transferred from Hyderabad to Sukkur, on 15th September, 1982. He obtained medical leave and moved an application under section 53 read with section 15 of the Industrial Relations Ordinance, 1969, before the respondent No, 1 against the petitioners complaining that his transfer from Hyderabad to Sukkur bad been motivated on account of the fact that the respondent No, 2 was participating in the activities of the union when he was a clerk and even after his promotion as an officer he had formed National Bank of Pakistan Officers Association and got the same registered with the Deputy Registrar of Trade Union and he had been elected as the President of that union. In that capacity he had espoused the grievances of the officers of the National Bank and had brought, o the notice of the higher authorities of the said bank, irregularities committed by the present two petitioners and, therefore, the present two petitioners had developed a grudge against respondent No, 2 and in order to pressurise respondent No, 2 the petitioners had transferred respondent No, 2 from Hyderabad to Sukkur.
' The order, dated 24th October, 1982 (Annexure 'C' to the Petition) shows that a complaint was registered. Thereafter it is mentioned that the complainant viz, respondent No, 2 had also submitted an application under Regulation 32(2) of the N. I. R. C. 1973 praying that the respondent may be prohibited from implementing the order of this transfer from Hyderabad to Sukkur. The order of transfer was suspended on the ground that respondent No, 2 was likely to resume duty in the near future. It is, therefore, argued that the order of suspension of the transfer was made on the complaint of respondent No, 2 submitted under section 53 of I. R.
0. 1969. The said interim order was duly confirmed, on 22nd December, 1982 after hearing the parties.
' The petitioners having been aggrieved against the same, have filed the present petition. Mr. Mamoon Kazi raised number of points. He submitted that respondent No, 2 was not workman and hence he could not make a complaint under section 15 of I. R.
0. 1969 because section 15-D provides for unfair labour practice being committed against the worker on account of his union activities and one of the unfair labour practice is transfer of that person on account of union activities. We cannot however, hold that respondent No, 2 is not a workman because the petitioners have not supplied any date to determine that the respondent No, 2 could not be regarded as a workman or as an employer as defined under section 2 of I. R. O.
1969. It was for the petitioners to establish that position positively which they have failed to do. Mr. Mamoon Kazis submission was that respondent No, 2 has himself admitted that the had been promoted as an officer, therefore, he could not be called a workman. Mr. Malik M. Said, Advocate appearing for _respondent No, 2 pointed out to us that mere designation of an employee was not decisive to determine whether he was a workman or an employer. He relied upon 1961 PLC 47. He also relied upon PLJ 1969 and PLD 1975 Kar.
342. In one case it was held that a person who was assigned to a duty to see that work is executed is not performing necessarily a supervisery duty. In the other decision it was held that where an employeed was playing the second fiddle in the management he could not be called a supervisor or a manager. We have already indicated above that the petitioners have failed to bring the facts on the record which could establish that respondent No, 2 was working in the capacity of a manager and, therefore, the mere fact that he was designated as an officer without having supervisory duties would not take his case out of a workman. We are, therefore, of the view that the petitioners have not established so far that respondent No, 2 was not a workman. In fact the decision of this matter would depend upon the evidence which is led in respect of this matter before the respondent No, 1, and, therefore, on this ground we cannot sustain this petition at this stage.
The next ground taken by Mr. Mamoon Kazi is more substantial. He has submitted that since the respondent No, 2 has already filed a complaint under section 53 of I. R.
0. 1969, therefore, he has taken a definite position that the petitioners have already committed an offence under section 15 of I. R. O. Which is punishable under section 53 of the I. R.
0. Once the respondent No, 2 had taken that factual position it was not open to him to seek an injunction under Regulation 32(2) o N. I. R. C. Regulations, 1973. This appears to be a correct submissio that respondent No, 2 has taken the position that because of his transfer by the petitioners from Hyderabad to Sukkur the petitioners had committed an offence under section 53 of I. R. O. And, therefore, he filed a complaint against them under section 53 and if the offence was proved then the petitioners would be punished under that section. Once respondent No, 2 has taken the position that the offence under section 53 has been committed by the petitioners the respondent No, 2 cannot take the position that an unfair labour practice was likely to be committed in future against him. It, therefore, appears that the provisions of Regulation 32(1) was not attracted to the case of respondent No, 2 and he could not really ask for relief under Regulation 32(2) where a relief in respect of apprehended unfair labour practice can be granted after holding an inquiry.
' The learned counsel for the petitioners has relied upon an order passed by a Division Bench of the Court on 1st October, 1980 in Constitutional Petition No, D-1358 of.
1980. We shall reproduce a part of para. 3 of the same hereunder :7- "In the instant case the respondent No, 2 filed a complaint under section 16 read with section 53 of the I. R.
0. It may be observed that a complaint under section 53 could have been filed in respect of an unfair labour practice already committed as provided under aforesaid para. 1 of the Regulation 32 referred to hereinabove and not in respect of an unfair labour practice which is likely to occur. It may be noticed that proceedings under section 53 are criminal nature and they entail imprisonment upto 3 year's R. I. Or with fine upto Rs, 2,000 or both. The respondent No, 2's above complaint is mainly based on the aforesaid transfer order, which according to him, was prompted mala fide with the view to victimize him as he is an active unionist. In our view the very fact that the respondent No, 9 has chosen to file the above complaint under section 53 prima facie indicates that he himself has treated the above order of transfer, an act of unfair labour practice, which has already been committed and, therefore, prima facie the respondent No, 2's case falls within the ambit of para. 1 of Regulation 33 and not under para. 2 of the above regulation and, hence, prima facie the ad interim order of the nature in issue, could not have been passed by the learned Member of the N. I. R. C."
' We agree with the views of the Division Bench in the above case and we are of the view that the present case before us is fully covered by the decision in the above petition. Mr. M. M. Said has not been able to show anything in opposition to the above decision. He merely stated that the injunction order had been passed on a separate application which had been moved by the respondent No,
2. We do not agree that there was an independent application made by respondent No, 2 upon which an order of injunction had been passed. We have seen that the interim injunction was passed in the same order where a complaint had been registered and, therefore, it is difficult to conceive that the respondent No, 2 had made an independent application on the civil side of the jurisdiction of respondent No,
1. Had there been an application under section 25-A or section 34 of I. R.
0. Made by respondent No, 2 then alone it would have been argued that there was a separate application on the civil side jurisdiction of respondent No,
1. An application under Regulation 32 of N.
I. R. C. Regulation, 1973 pursuant to a complaint under section 53 could not be considered to have been moved on the civil side.
In any case the respondent No, 2 cannot take up two inconsistent positions. One where he says that penal action under section 53 should be taken against the petitioners because they have already committed an unfair labour practice under section 15 of I. R.
0. By transferring him on account of his union activities and the other position that the petitioners are likely to commit or are intending to commit an unfair labour practice by transferring him from Hyderabad to Sukkur. The respondent No, 2 cannot blow hot and cold in the same breath. He has to confine himself to one position and if he takes two inconsistent positions then he himself takes risk of the same.
' Mr. Mamoon Kazi also cited PLD 1976 Lah. 611 where it was held that while dealing with a complaint under section 53 the Commission would not make an order of re-instatement of a dismissed employee before concluding the hearing of the complaint under section 53. The view was based on the proviso of regulation 32(1) which provided that while awarding punishment under section 53 Commission may also direct the re-instatement of a worker and allow consequential benefit 'to him. With respect we agree with this view.
In the result we are of the view that the orders, dated 24th October 1982 and 22nd December, 1982 passed by respondent No, 1 restraining the transfer of the respondent No, 2 on a complaint under section 53 of I. R.
0. Were made without jurisdiction and are hereby declared to be without lawful authority. The complaint of the respondent No, 2 under section 53 can however, be proceeded with by respondent No,
1. This petition is allowed and the order of stay of transfer of respondent No, 2 by the respondent No, 1, dated 22nd December, 1982 is declared to be without lawful authority.