' This judgment will dispose of Writ. Petitions Nos. 17829 of 1995, 1420 of 1996 and 7032 of 1996, as these are between the same parties and common questions of law and facts are arising.
2. Respondent No,1 in all these cases is a Grade-III employee of the petitioner-Bank. On 7-5-1995, he was transferred from Lahore to Karachi. On 14-5-1995, respondent No, 1 filed application under section 22-A (8)(g) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as I.R.O,) along with a stay application. It was averred therein that respondent No, 1 was office-bearer of the MCB Staff Union of Pakistan and his transfer to Karachi was an act of victimization and, therefore, the petition. This petition was proceeded with and apparently an interim order suspending the order of transfer was issued on 14-5-1995. Against the interim order Writ Petition No, 6972/95 was filed by the petitioner which was disposed of on 5-6-1995 by directing the National Industrial Relations Commission (hereinafter referred to as N.I.R.C.), to dispose of the injunction matter by 12- 6-1995. This was not done which led the petitioner to file Writ Petition No, 9740/95 against the same interim order. This petition was withdrawn on 30-7-1995 as the petitioner opted to avail another chance with N.I.R.C. On 18-2-1996 N.I.R.C. Allowed the main petition and set aside the order of transfer dated. 7-5-1995.
3. Writ Petition No, 7032 of 1995 is directed against this final order of N.I.R.C. This petition was admitted to regular hearing on 6-5-1996 and the operation of the impugned order of the N.I.R.C.
Dated 18-2-1996 was suspended. On 13-11-1995 respondent No,1 was charge-sheeted. On 15-11-1995 respondent No, 1 again filed a petition under section 27-A(8)(g) of the Ordinance calling in question the validity of the charge-sheet dated 13-11-1995. On 16-11-1995 learned Member, N.I.R.C. By an interim order suspended the charge-sheet. Against this order petitioner-Bank has filed Writ Petition No,17829 of 1995 which was admitted to regular hearing on 18-12-1995 and the operation of the impugned order of N.I.R.C. Was suspended. Respondent-employee filed application for recalling the interim injunction. On 9-1-1996 notice of these applications was directed to issue to the opposite-party and it was further ordered that enquiry proceedings may continue but no final order will be passed by the employer-Bank. Thereafter, it seems the respondent-employee was directed to file the reply to the charge-sheet. It seems the respondent-employee insisted on the grant of copies of the dociiments/Bank record before he could proceed to defend the charge against him. Not satisfied with the reply of the petitioner-Bank, on 16-1-1996, respondent-employee again approached the N.I.R.C. With a petition under Regulation No, 32(2) of the National Industrial Relations Commission (Procedure and Functions) Regulations, 1973. On the next date, i,e, 17-1-1996, the learned Member N.I.R.C. Admitted the petition and directed notice for 15-2-1996. As an interim measure if directed the petitioner-Bank to provide all the documents solicited by the respondent- employee, otherwise the enquiry will not proceed. Once again aggrieved, the petitioner-Bank filed Writ Petition No, 1240 of 1996. This petition was also admitted on 24-1-1996 and by an interim order the operation of the impugned order was suspended. It is stated at the Bar that enquiry proceedings are still pending without any progress.
4. In the written statement filed in response to the main petition against the order of transfer dated 7-5-1995, various objections as to jurisdiction of the N.I.R.C. Have been raised. It is claimed therein that respondent-employee is not a workman, inasmuch as. He is a Grade-III Officer and his pay- emoluments are in the sum of Rs, 13,000 approximately. It has also been urged that per se an order of transfer is not an act of unfair labour practice and in the absence of any unfair labour practice, N.I.R.C. Has again no jurisdiction. The third objection in the written statement was that since no grievance notice as required under section 25-A of the I.R.O. Was given to the employer-Bank, the petition merited to be dismissed on this ground alone. Sh. Ata-ur-Rehman, learned counsel for the petitioner has urged that none of these legal and jurisdictional objections have been properly dealt with by the N.I.R.C. He has also shown from the original record of the N.I.R.C. That the procedure adopted by the learned Commission has no sanction of law. It has recorded no evidence at all and, without determining its own jurisdiction, it has proceeded to decree the claim of respondent No,1- employee. It is urged that the finding as to whether the respondent-employee is or is not a workman or a worker and whether any unfair labour practice has or has not been committed, cannot be given without investigation and recording of evidence, which has not been done.
5. Mr. M.A. Khadim, Advocate, appearing for respondent-employee has not denied that as such neither any issue was framed nor any evidence was recorded. He has, however, attempted to defend the impugned judgment by urging that in view of the duty list attached with the petition, respondent-employee is a workman and merely because proper procedure has not been followed, would not be enough to hold that the impugned order is vitiated. In so far as Writ Petition No,17829 of 1995 and 1420 of 1996 are concerned, it is contended by Mr. M.A. Khadim, that the same are not maintainable, inasmuch as, they are directed against the interim orders of the N.I.R.C. And the petitioner-Bank has the remedy of showing cause against the order as well as filing appeal before the Full Bench of the N.I.R.C. Which remedy, it is contended, is adequate in law.
6. Both the learned counsel have, with reference to decided cases also canvassed for and against the propositions (i) whether in the absence of grievance notice, as required under section 25-A of the I.R.O., an application in the N.I.R.C. Is competent, (ii) whether or not mere allegation of unfair labour practice suffices to invoke the jurisdiction of N.I.R.C. In such cases or whether it is the Labour Court which should be approached, and (iii) whether or not transfer is or is not an unfair labour practice since it is inherent in the service conditions that an employee is liable to serve anywhere.
7. It is clear from the narration of facts recorded above that not only the respondent-employee has been liberally approaching the N.I.R.C. But he has been accommodated with equal magnanimity.
The employee started litigation by challenging his order of posting at Karachi, dated 7-5-1995. This order was suspended ad interim, but on approach by petitioner-Bank as well as on at least one or two directions by this Court, the validity of interim injunction was not considered vis-a-vis the jurisdiction of the Commission. This compelled the petitioner-Bank to approach this Court again and again. Finally the transfer order dated 7-5-1995 has been set aside on the ground that it is the result of unfair labour practice. It is admitted that this finding has been arrived at without recording any evidence and without giving opportunity to the petitioner-Bank to rebut the claim of the employee. Similarly, the questions pertaining to the jurisdiction of N.I.R.C. Have not been decided after following the due procedure and again without giving opportunity to the petitioner-Bank to sustain the objections. Whether the employee was or was not a workman, was a jurisdictional fact and before deciding in favour of the employee, it was obligatory upon the N.I.R.C. To have given an opportunity to the petitioner-Bank to disprove the assertion. The procedure to be followed in such cases is laid down in the Regulations framed by the N.I.R.C. Itself. Reference has been made to Regulation Nos, 19 and 34 of the N.I.R.C. (Procedure and Functions) Regulations, 1973. Regulation No,19 directs following the procedure of C.P.C. Unless excluded. The lis being raised by the employee before the N.I.R.C. Was eminently fit for application of the procedure laid down in Code of Civil Procedure, 1908. It is emphasized that the question whether an employee is or is not a workman, is not a question purely of law and its decision of necessity hinges upon the recording of evidence. It may further be noted and emphasized that besides the procedure laid down in C.P.C., there is always a minimum requirement of the principles of natural justice. One of such requirement is that a party must be given adequate opportunity to present its point of view. In this case the petitioner-Bank has not at all been given an opportunity by the N.I.R.C. To lead evidence to show that the employee was not a workman. In fact it was in the interest of the employee himself to have -first led the evidence in affirmative to claim that the employee was a workman. There cannot be a presumption of any person being a "workman" or a "worker" merely because it has approached the Labour Court or the N.I.R.C. As a petitioner. The N.I.R.C. Has acted illegally in returning a finding on this question without recording evidence and, in any case, without affording an opportunity to the petitioner-Bank to produce evidence and other necessary material in support of its point of view, in accordance with law. This alone suffices to declare the impugned order dated 18-2-1996 as having been passed without lawful authority.
8. Same is the case as regards the allegations of unfair labour practice. The same is defined in statute. It is again a mixed question of law and fact and such questions cannot be decided without investigation and holding of enquiry and recording of evidence. Learned N.I.R.C. Has held the order of transfer dated 7-5-1995 as an act of unfair labour practice on no evidence, not even the statement on oath of employee. It is well-settled that pleading is no evidence and no finding can be based on the assertions made in the application/plaint or reply/written statement. This finding having been given on no evidence, has no sanctity in law and has rendered the impugned order as illegal and against the provisions of law.
9. In view of the above determination, the other questions raised for and against the ,respective cases by the learned counsel for the parties need not be determined. All these are left to be urged before the N.I.R.C. In the first instance which is expected to consider the same dispassionately.
10. However, one question raised by Mr. M.A. Khadim, Advocate, as regards the maintainability of Writ Petitions Nos. 17829/95 and 1420/96 may be attended. The objection to maintainability has been raised on the ground that these two petitions are directed against the interim orders. With reference to case-law, it is urged that normally this Court will not interfere in interim orders. The proposition as canvassed by Mr. M.A. Khadim on the face of it is correct, but its applicability in the facts and circumstances of the present case is doubtful. It may be recalled that this Court disposed of the earlier Writ Petition No, 6972 of 1995 on 5-6-1995 on the ground that the petitioner- Bank should approach the N.I.R.C. For recall of the interim order. The N.I.R.C. Was directed to decide the fate of the interim injunction by 12-6-1995. Unfortunately this direction was not complied with.
The petitioner-Bank was compelled to file. Writ Petition No,9740 of 1995 but again withdrew the same on 30-7-1995 to have another chance with N.I.R.C. The principle canvassed by Mr. M.A.
Khadim regarding non-maintainability of the Constitutional petition against interim order is not attracted to such situation, particularly when the very jurisdiction of the N.I.R.C. To issue the interim injunction is seriously questioned. The questions like the employee being a workman, whether an order of transfer or holding of an enquiry and issue of charge-sheet and the manner of conducting an enquiry are acts of unfair labour practice, cannot be prima facie answered in the affirmative.
The learned Commission ought to have paused and applied, its mind to these questions before proceeding to assume jurisdiction. In such a case the expediency demanded that the opposite- party be called for a short date and heard. This eliminates the grievances which have been made in all these petitions. Notice to the opposite-party for a day or two or so before issue of interim injunction would have served the purpose and the petitioner-Bank would have been in a position to assist the learned Commission in the controversy.
11. For the reasons noted above, all these three petitions are allowed with costs to be borne by respondent No, 1, and impugned order in each of these petitions is hereby declared as having been passed without lawful authority and of no legal effect. As a consequence, the employee's petitions before the Commission shall be deemed to be pending which may now be proceeded with and decided in accordance with law and the observations made in this judgment. Before passing effective orders, the learned Commission will determine the jurisdictional questions first in the presence of the parties.