DECISION ' By this application, the applicants seek to bring to the notice of this Tribunal the orders passed by the learned Sindh Labour Court No, VII at Sukkur, dated 11-4-1989 and 9-6-1989 and invoke the jurisdiction of this Tribunal under section 38 (3-a) of I.R.O., 1969, to call for the R & Ps of the Application No,5 of 1989 pending in the said Court for the purposes of examination of legallity, correctness and propriety of the aforesaid orders.
2. I have heard Mr. Shabbir Ahmed Awan, learned Advocate for the applicants and Mr. Nizamuddin Baloch, learned Advocate for the respondent and also gone through the record and proceedings of Application No,5 of 1989, pending before the learned trial Court.
3. The facts on the record show, that the respondent is employed as `Inspector of Works' Grade H and at the relevant time was posted at Sukkur. He claims to be 'employer' within the definition of 'employer' under the I.R.O., 1969 as he was so declared by Notification of Pakistan Railways, dated 15-11-1983. He alleges that he was illegally transferred from Sukkur to Lahore by Divisional Superintendent, Sukkur vide order dated nil, which has been produced as Annexure 'E' alongwith the application. He therefore filed Application under section 34 of I.R.O., 1969, before the learned trial Court praying for permanent injunction restraining the applicants from implementing the aforesaid order. Alongwith the application he also filed an application for 'Interim Stay' against the implementation of the aforesaid order on which notice was issued by the learned Presiding Officer.
However, on the date of hearing the respondent moved an application for adjournment which was granted but 'status quo' was ordered to be maintained. The present applicants allegedly committed breach of the said order of 'status quo', and therefore, the respondent moved application for punishing them under Contempt of the Court on 23-4-1989. The learned Presiding Officer vide impugned order dated 9-6-1989 passed following order:- "The record shows that the respondents have not been served but respondent No, 1 has been served who also filed his objection on 16-6-1989. Keeping in view the position occupied by respondents, I restrain myself to take any action today but finally direct the respondents to comply with the orders passed by this Court on 11-4-1989 and pay the salary and dues to the applicant within a week and in case of failure action has to be taken under the provisions of Order 39, Rule (3)
2 of C.P.C. Against the respondents without issuing any fresh notice to them. Copy of this order be sent officially to the present Divisional Superintendent working in place of respondent No,l."
4. The main contention of Mr. Shabbir Ahmed Awan, learned counsel for the applicants is that the application under section 34 was not maintainable and, therefore, all the proceedings and orders passed in the proceedings would be illegal. It is contended by him that the application under section 34 can be filed by an 'employer' only and not by worker. In support he has relied upon the decision of learned Full Bench of Sindh High Court Karachi in the case of Karachi Pipe Mills Ltd. v.
Sindh Labour Appellate Tribunal and 2 others 1984 PLC 1359. He has also relied upon the decision of learned Labour Appellate Tribunal Punjab in the case of Shafqat Ijaz Ahmed Khan v. Rehman Maize Co. Ltd. And others 1982 PLC 448. In that case the appellant had first moved an application under section 25-A, I.R.O., 1969 which was dismissed on the ground that he was not a workman. He subsequently filed an application under section 34 claiming to be an employer. In that case it was held that the appellant was not even an employer as defined under section 2 clause (viii) sub- clause (e) of the I.R.O.,1969, and as such his appeal was also dismissed.
5. However, the respondent in this case claims to be 'employer' within the definition of sub-clause
(c) of clause (viii) of section 2 which reads as under:-- "2. Definitions.--In this Ordinance, unless there is anything repugnant in the subject or context--
(viii) 'Employer' in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes--
(a) .....................
(b) .....................
(c) in relation to an establishment run by or under the authority of any department or the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) in relation to an establishment run by or on behalf of a local authority, the Officer appointed in this behalf or where no Officer is so appointed, the Chief Executive Officer of that authority."
' The respondent has produced a Notification issued by Secretary Railway Board as Annexure 'A' under which Assistant Inspectors and Inspectors have been declared to be employers within the meaning of sub-clause (viii) of section 2. In view of this Notification it cannot be doubted that the respondent is an employer as defined under the I.R.O. The question arises whether the employer, who in fact is an employee, can seek relief against his real employer viz. Railways under section 34 of I.R.O.,1969. Section 34 of I.R.O., 1969 reads as under:- "34. Application to Labour Court.--Any Collective Bargaining Agent or any employer may apply to the Labour Court for the enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement."
' The plain reading of section 34 would show that there is no bar under this section on an employer to seek relief under section 34 even against his own employer, provided it is with regard to enforcement of right, guaranteed or secured to him by any law, award or settlement. The contention of the respondent is that his transfer from Sukkur by Divisional Superintendent Sukkur to Lahore was without jurisdiction. The Divisional Superintendent, as per rules, could not transfer him outside his Division. This is a question of fact which can be decided only after evidence with regard to the rules or law is recorded. Prima facie the respondent appears to have produced a letter issued by Headquarter Office Lahore, dated 11-3-1981, whereby all the Superintendents have been directed not to change the station of posting of staff in Grade 14 and above without obtaining the prior approval of the Headquarters office. Prima facie the order of transfer which has been produced as Annexure 'E' indicates that it has been issued without the prior approval of the Headquarters as a copy of the order is ordered to be sent to the General Manger (Personnel)
Lahore for issuance of proper transfer order from Headquarter. The record does not show that any such orders have been issued from Headquarter transferring the respondent from Sukkur.
6. Under the circumstances prima facie it appears that the learned Labour Court had not committed any illegality in issuance order of status quo on 11-4-1989. The impugned order, dated 29-6-1989 does not appear to be illegal. Though the order does not appear to be properly worded but in fact in the order the respondents have only been directed to comply with the earlier order, failing which the appellant would suffer the consequences. I see no reason to interfere with the impugned order in exercise of Revisional Power of this Tribunal.
7. Mr. Shabbir Ahmed Awan has relied upon the decision of this Tribunal in Appeal No, 397 of 1988 decided on 22-5-1989. In that case though Relieving Station Master was declared by Notification to be an 'employer' by the Railways Administration but he was held by this Tribunal to be 'workman' as defined under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. This Tribunal observed that the appellant in that case had been declared as 'employer' under section 2 (viii) of I.R.O.,1969 but the dispute raised in that case was not under the I.R.O. But under the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 and therefore the definition of 'employer' and 'workman' under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and that the definition of 'employer' as contained in the Rules, 1969, would be applicable. Mr. Nizamuddin Baloch has however relied upon three decisions a learned Labour Appellate Tribunal Punjab in Appeals Nos.
357 of 1989, 317 of 1988 and 643 of 1986 wherein the appellants were declared as 'employer' under Notification by the Railway Administration but they were allowed by the Appellate Tribunal to seek relief against the Railways under section 34 of I.R.O. In fact the question of maintainability of the application was neither raised before the learned Labour Court nor there is any decision of Labour Court in this respect. I need not discuss in detail the effect of the aforesaid decisions because the question of maintainability of the application, if raised before it, under section 34 can be considered and decided by the learned Labour Court in the light of the evidence that may come on the record.
8. The Revision Application is dismissed. However, the learned Presiding Officer is directed to decide without further delay the application for 'Interim Injunction' on merits unprejudiced by his previous orders after hearing the parties. His attention is also drawn to the fact, that the 'Interim Orders' are issued by the Labour Court in exercise of its powers under Order XXXIX, C.P.C. Which also provides procedure in case any breach of injunction is committed. This order would also not preclude the applicants from moving an application for vacation of the 'Interim Order' or for rejection of the Application under Section 34 of I.R.O. In case they are able to satisfy the trial Court that there was no such law or rules of which the enforcement could be sought by the respondent under section 34 of I.R.O. The R & P be returned back to the trial Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.