' This is an appeal against an order passed by Labour Court, Muzaffarabad on July 28, 1994, whereby the application of the appellants' Union, filed under section 30 of the Industrial Relations Ordinance (hereinafter to be referred as Ordinance), has been returned for presenting the same before competent Court.
2. This appeal has been filed by the Employees' Union Muslim Commercial Bank through its President and General Secretary. The case of the appellants-Union is that respondent-Bank's management indulged in unfair practice by passing transfer orders of the members of the said Union with the result that the appellants-Union was constrained to serve grievance notice to the respondent-Bank. When grievances of the employees' Union were not redressed, the appellants- Union filed an application under section 30 of the Ordinance on April 26, 1994. The respondent-Bank filed their objections before the Labour Court on May 7, 1994. In the light of the pleadings of the parties, the Labour Court framed issues of law and fact and after being convinced that the matter at issue can be conveniently decided on issues of law, it heard arguments on issues No, 1 and 3 and ultimately, vide order under appeal dated July 28, 1994, returned the application to the appellants- Union for its presentation before the proper Court having territorial competence.
3. In the background of these facts, Sardar Rafique Mahmood Khan, the learned counsel for the appellant-Union, argued that the Labour Court has failed to exercise its jurisdiction as envisaged under section 30(4) of the Ordinance. According to him, the aggrieved worker is legally competent to bring his grievance before the Labour Court after fulfilling the requirements of the said Ordinance either in his personal capacity or through Trade Union. According to the learned counsel, if any worker is aggrieved of any order of the employer, then he can bring his grievance before the Labour Court at a place where he was serving and cause of action arose to him. But if for the redress of his grievance, the aggrieved worker has taken the help of Trade Union, then in that case, the grievance petition shall lie in the Court where the Central Office of the Trade Union is situated. According to the learned counsel, in the present case, three employees, namely, Amanat Hussain, Assistant and Muhammad Bashir and Muhammad Ismail, Guards who were serving in Poonch District, were transferred as such the grievance has arisen to these workers who took help of Trade Union whose office was located at Muzaffarabad. The Labour Court of Muzaffarabad District was the competent forum for availing the remedy against the mala fide orders of transfer of the abovementioned workers. Subsection (6) of section 30 of the Ordinance deals with the matters where an employee is aggrieved by the termination of his service as a result of retrenchment, dismissal, discharge, lay-off, lock-out etc., etc. In the present case, the case of the appellants' Union was and is that respondents-Bank had passed transfer orders of the office- holders and members of the Union to curtail their Trade Union activities. This action of respondents-Bank was covered by section 18 of the Ordinance and as such the Union-appellant whose office is located at Muzaffarabad, had rightly invoked the powers of the Labour Court, Muzaffarabad.
4. As against the Raja Muhammad Hanif Khan, the learned counsel for the respondents-Bank argued that transfer orders of the aforesaid persons were passed due to the re-organisation of the Bank. The Bank is short of staff. It has to run its functioning with the staff available to it. On account of this difficulty, the abovementioned three employees of the Bank were posted at different places.
The Bank has not passed the orders of transfer of these persons to curtail the Trade Union activities.
He further argued that till the time, the new staff is inducted into the service of the Bank, the working of the Bank is to be carried with the staff available to it. According to the learned counsel, it was a right of the management of respondent-Bank to transfer its employees due to reorganisation of the branches of the Bank. He further argued that if the transfer orders are passed under section 18 of the aforesaid Ordinance, then the remedy is available under section 63 of the Ordinance which provides different penalties. The transfer orders cannot be stayed by invoking the powers contained in Order 39, C.P.C. He in this connection, cited an unreported judgment of this Court titled "AKLAS Employees Union through Choudhary Muhammad Najeeb v. AKLAS and Saw.
Mills, Mirpur through its General Manager and others" decided on January 21, 1992. This decision of the Labour Court which, according to the learned counsel, was assailed before the High Court in its writ jurisdiction. But the High Court dismissed the writ petition and on appeal, the learned Supreme Court also maintained the order of the High Court.
5. I have given my due consideration to the respective arguments of the learned counsel for the parties and have carefully examined the legal aspects of the case.
6. The respondent-Bank in view of its re-organisation, has got inherent right to transfer any of its employees. Under section 18 of the Ordinance, only such transfers are prohibited which are made to curtail the Trade Union activities of the employees' Union. In the instant case, two guards have been transferred who have been shown as workers of the Union and an Assistant who is an office- holder of the Union, has been shifted. If these orders of transfer have been made out of malice, then the Trade Union has a right to invoke the relevant provisions of the Ordinance. In the present case, no Labour Court has got powers to issue any interim injunction against the respondent-Bank.
In view of the aforesaid legal position of the case, the petition under section 30 of the Ordinance lodged by the appellants-Union, was not maintainable. Prima facie, the abovementioned employees have been transferred by the respondent-Bank in view of its reorganisation and smooth functioning of the Bank's business. But if transfer orders under consideration were passed with mala fide intention to curtail the lawful Trade Union activities, then they or the Trade Union may seek remedy under the relevant provisions of the Ordinance.
7. In view of the above observations, the appeal is without merits which is hereby dismissed.