' This order will dispose of an application for adinterim injunction, moved by Muhammad Saeed, Ticket Collector, Grade III, Pakistan Railways, Multan (hereinafter to be called the complainant) on 29th May, 1983 in an application, pending under sections 15 and 53 of the Industrial Relations Ordinance, 1969, wherein he prayed that his transfer order, passed by Syed Zahoor Ahmad, Divisional Superintendent, Pakistan Railways, Multan (hereinafter to be called the accused) on 16th April, 1983 may be suspended till disposal of the main case.
2. The complainant's contention is that he is a Propaganda Secretary of the Railways Workers Union, Multan Division, Multan, which is rival to the Pakistan Railways Employees Union. The Accused's sympathies are with Pakistan Railways Employees Union. With a view to strengthen it, the accused compelled the complainant to join the same. The complainant refused to do so. His refusal led to his victimization by the accused. He was transferred to Khanewal on 18th December, 1982. He made representation against this transfer which, being genuine, was accepted on 3rd April, 1983. The Pakistan Railways Employees Union did not like this change. It succeeded in having his transfer disturbed through the agency of the accused. On 16th April, 1983 the order dated 3rd April, 1983 was cancelled with a direction to the complainant to wort at Multan temporarily for four months with his headquarter at Khanewal. The complainant, in this manner, not only lost sufficient amount in terms of allowances available to him at Multan, but also is going to lose his connection with his union. The alleged activity on the part of the accused amounts to unfair labour practice under section 15 of the Industrial Relations Ordinance, 1969, hence he may be dealt with under section 53 of the same law. Till the disposal of his complaint, the operation of the order, dated 16th April, 1983 may be suspended to save the complainant from irreparable loss and inconvenience.
3. The accused has contested the application for ad interim injunction on the following grounds :-
(1) No case has been made out against the accused under section 15 of the Industrial Relations Ordinance, 1969.
(ii) The transfer of an employee is the prerogative of the employer which cannot be interfered with ad interim injunction.
(iii) The ad interim injunction cannot be issued in a complaint case.
(iv) The accused being a public servant cannot be prosecuted without prior permission of the competent authority.
(v) The transfer order has been implemented.
4. With a view to arrive at a conclusion, I have gone through the record, produced before me and have heard the arguments of the learned counsel for the parties. A careful perusal of the facts and the relevant provisions of law takes me to a conclusion which supports the complainant's version.
The dispute between the parties revolves around the following issues :-
(1) Whether no case of unfair labour practice has been made out against the accused ?
(ii) Whether transfer of an employee is the prerogative of the employer which cannot be interfered with by interim injunction ?
(iii) Whether the ad interim injunction oannot be issued in a complaint case ?
(iv) Whether the accused being a public servant cannot be prosecuted without prior permission of the competent authority ?
(v) Whether the order of transfer has been implemented ?
(vi) In case the ad interim injunction is refused, whether the complainant ill suffer irreparable loss and inconvenience ?
5. The first issue i; as to the existence of a prima facie case against the accused which is clearly proved by means of the whole record. The complaint was instituted in the Court on 29th May, 1983.
The Court recorded the preliminary evidence on 30th July, 1983 in order to assess the maintainability of the action against the accused. After evidence, the Court came to the conclusion that the complainant had a prima facie case, consequently, action must be taken accordingly.
With this view of the matter, it recorded its findings to this effect on 7th August, 1983. The accused did not challenge it anywhere. In the presence of order dated 7th August, 1983 the accused cannot deny the existence of a prima facie case against him.
6. The next issue is with regard to the prerogative of the employer to transfer the employee.
Generally speaking, the proposition, raised by the accused, is correct but in cases coming under section 15 of the Industrial Relations Ordinance, 1969, or any other law, controlling the power of transfer, this prerogative cannot be claimed arbitrarily. Section 15(i)(d) of Industrial Relations Ordinance, 1969, says that no employee can be transferred on account of his trade union activities.
If he is so transferred, then he is liable to punishment under section 15(3). In the instant case, the accused's bias against the complainant for his Trade Union activities is quite clear. The complainant has produced Exh. P. 8 which is a threat in writing to the accused by the Pakistan Railways Employees Union for his re-consideration of the complainant's transfer to Khanewal. It is in line with this fact that the complainant's transfer to Multan was disturbed. Had it been in the public interest, then the accused must have resisted this threat instead of bowing before it.
7. The Pakistan Railways Employees Union may argue that retransfer of the complainant from Khanewal to Multan was in fact the result of pressure exercised by the complainant Union. It is to undo this pressure that the Pakistan Railways Employees Union came forward with Exh. P.
8. Although there is no evidence in support of this version yet it may prove true at final stage.
However, this argument makes no difference. Pressure from either side proves the involvement of the accused in the Trade Union activities, which can be dubbed as unfair labour B practice as well as misuse of power. Exercise of the powers at the will of the union without having regard to the administrative interests cannot be called a fair deal.
8. The next objection is about the maintainability of the application for ad interim injunction in a complaint case. The accused's version is that the complaint is governed by the Code of Criminal Procedure while the application for ad interim injunction lies under the Code of Civil Procedure.
Both having different forums, cannot be amalgamated in this way. This argument can be met on the strength of Regulation No, 32 of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 and section 22-A of the Industrial Relations Ordinance, 1969.
Regulation No, 32(2) gives powers in the nature of ad interim injunction to the National Industrial Relations Commission. Section 22-A of Industrial Relations Ordinance, 1969, gives powers to the Labour Court to try the cases of unfair labour practice, in conjuction with National Industrial Relation! Commission. By way of analogy, we can safely say that same powers can be exercised by the Labour Court. If the N.
1. R. C. Can issue injunction, then why not a Labour Court, trying an offence of the same nature in the same set of circumstances. That being an exception to law with regard to two forums, the accused cannot say anything against the application for ad interim injunction.
9. Even otherwise, the power to issue ad interim injunction can be justified in accordance with the theory of inherent powers of the Court. In matters not provided or prohibited, the Court may pass any order to advance justice. In the Code of Criminal Procedure, no provision has been made with regard to ad interim injunction. At the same time, it has D not been prohibited. In the given situation, in the fitness of the circumstances, the Court should come forward to intercept the continuation of an unfair labour practice as in the case in hand.
10. The next argument, which supports the complainant's version is that the existence of general powers with the Court implies the existence of special powers also. Generally, if the Court can punish a wrong by way of imprisonment etc., it can pass an order in the nature of prohibition or otherwise, till final disposal. If we go behind the philosophy of detention of the accused till disposal of the criminal case, in certain cases, we will fully grasp this idea.
11. The fourth issue concerns the status of the accused as a public servant and necessary permission for his prosecution. Under the Code of Criminal Procedure, it is correct that, prior permission is necessary but not when the act has been done in the personal capacity. In this case, the accused was working under the pressure of the union and not for administrative purposes.
Clearly, therefore, there is no need of any prior permission.
12. Lastly, the accused says that transfer order has been implemented. This plea is not reliable because he has not tendered any proof to this effect. Admittedly, the complainant is on leave. The charge has not been handed over so far. In the absenee of the same, it is difficult to say that the complainant has been fixed up in his new place of business.
13. Finally is the issue about the irreparable loss and inconvenience. This issue definitely goes in favour of the complainant because section 15 F of Industrial Relations Ordinance, 1969 prohibits the same. Crossing of that prohibition means to cause the employee to suffer irreparable loss and inconvenience.
14. For what has been said above, the application for ad interim injunction succeeds which is as such hereby accepted. I suspend the operation of the order dated 16th April, 1983 till final decision of the main case.