' MUHAMMAD ZAMAN QURESHI (CHAIRMAN).--Muhammad Tariq Officer Grade-III, respondent in this appeal, along with Waqar Ahmad Officer Grade-III and Muhammad Afzal, Officer Grade-III filed a joint petition under section 22-A(8)(g) of the I.R.O., 1969 claiming themselves to be the Press Secretary, Vice President and President respectively of Kohat Unit of Officers Union of M.C.B mentioning therein that they had earlier filed petitions against the management which were sub judice and that on account of their trade union activities they were transferred from their present place of posting at Peshawar and Kohat to Lahore and Gujranwala out of the Province, so that they could neither continue as office bearers nor take part in their trade union activities, which was an act of unfair labour practice. As such, there transfer order dated 25-9-1997 be set aside.
2. The Single Bench of the Commission seized of the matter while admitting the petition, suspended the operation of the transfer order through his order dated 30-9-1997. The Bank filed Writ Petition No.1639 of 1997 in the Peshawar High Court, which suspended the stay order granted by the Single Bench on 30-9-1997. However, after inviting written comments and affidavits in evidence Mr. Bahader Ali, Member accepted the petition and set aside the transfer orders vide decision dated 4- 6-1998. Muslim Commercial Bank has assailed that decision through the instant appeal. While admitting the appeal, the impugned order of the Single Bench was suspended by Full Bench vide order dated 16-6-1998.
3. Mr. Sohail Anjam learned Advocate for the appellant argued that while the petition was pending adjudication before the Single Bench, Waqar Ahmad left service under the Golden Hand Shake Scheme and Muhammad Azam made a statement that he did not file the petition. The respondent, Muhammad Tariq also joined his duty at Lahore after the suspension of the impugned order by the Full Bench and, therefore, the impugned order had become infructuous and liable to be set aside.
The learned Counsel further urged that after the appellant had filed the reply the Single Bench disposed of the whole case in an illegal manner without recording any evidence. The respondent was not a workman and the petition filed by him was not competent. It was further added that the respondent had been working in the Peshawar Region for 18 years and was transferred to Lahore in the exigencies of service in accordance with the terms and conditions of service of his employment. No unfair labour practice was either committed by the appellant or established on record through evidence. According to the terms and conditions of service of employment of the petitioner and the rules of the Bank the petitioner could be transferred anywhere in Pakistan.
4. The respondent on the other hand stressed that he was office bearer of the Officers Association Since 1994 and was transferred time and again which amounted to unfair labour practice on the part of respondent management. The Single Bench, therefore, rightly decided the case after inviting written comments and affidavits-in-evidence.
5. We have carefully considered the arguments and have perused the relevant record. It was not denied by the respondent that he was transferred from Peshawar to Lahore after about 18 years. He also admitted that he joined duty at Lahore after the suspension of the impugned order by the Full Bench at the time of the admission of the appeal. Resultantly the impugned order has become infructuous. There is also no document on record to show that the transfer of the respondent was made on account of his lawful trade union activities. We have noticed that Mr. Bahader Ali, Member without recording any evidence or affording opportunity cross-examination heard the arguments and decided the main petition on merits in a slip-shod manner which cannot be approved. Mere assertions of the respondent in the absence of any evidence on record would not make out a case of unfair labour practice. In the absence of strict proof, transfer of an employee is held to be a right of the employer and cannot be restrained merely because appellant petitioner happens to be officer/member of the Association. Reference is made in this regard to 1994 PLC 140 and 284. The Full Bench of this Commission has also held in Appeal No.12(133) of 1992 decided on 1-3-1994 that Officers of the bank cannot invoke the jurisdiction of the National Industrial Relations Commission either individually or through their union and that such petitions are not maintainable. In this regard reference is made to PLD 1961 SC 435. It was further held that no category of Officer, belonging to the superstructure can be permitted to come within the pale of sections 15 and 16 of the I.R.O., 1969 and, thus, destroy the efficacy of law and its object. In view of our above find we are inclined to hold that the impugned order dated 4-6-1998 recorded by Mr. Bahadar Ali, Member, is not sustainable either on facts or in law, Consequently we accept the appeal, set aside the impugned order dated 4-6-1996 and dismiss the. petition filed by the respondent. The parties shall bear their own costs.