' This is a revision application under section 38(3-a) of the Industrial' Relations Ordinance, 1969, challenging the order dated 14-4-1999, passed by the learned Presiding Officer, Sindh Labour Court No, 5 at Karachi, on an interlocutory application for stay, whereby the learned Presiding Officer set aside the order of transfer of Mr. Tariq Pervez from Head Office to a Branch at Nazimabad, invoking his powers under section 47 of the I.R.O,, 1969 and further in the same application; the learned Presiding Officer held the dismissal of an employee of the Bank namely Ameer Ahmed as being violative of section 47 of the I.R.O.
1969.
2. The facts, briefly stated, arising out of the above revision are, that the respondent union submitted a notice under section 26(1) of I.R.O,, 1969 on 19-2-1997. Thereafter, the union submitted a strike notice under section 26(3) on 3-3-1997. After conclusion of conciliation proceedings, the union filed an application under section 32(1-A) of the I.R.O., 1969, bearing No,3 of 1997, in the learned Labour Court No,5.
3. During the pendency of the application under section 32(1-A), an interlocutory application was filed on 15-3-1999 in the said Court, praying for restraining and prohibiting the management of the bank from victimising by way of transferring, dismissing and/or terminating the services of the officer-bearers/workers and for suspending/restraining the operation of the two letters dated 27- 2-1999 (whereby Mr. Ameer Ahmed was dismissed from the bank and letter dated 5-3-1999, whereby Mr. Tariq Pervez was transferred), as stated above.
4. Mr. Bajwa, learned counsel for the applicant-Bank challenges the order on the following grounds:-
(1) The provisions of section 47 are not attracted to the case of transfer.
(2) Mere transfer does not change the terms and conditions of the employment.
(3) In any case, the transfer of a workman within the same city, does not prejudice the workman.
(4) The transferee (Mr. Tariq Pervez) is not an office-bearer of the Union and this aspect of the matter was not at all taken into consideration by the learned Presiding Officer, though agitated before him. These are four grounds, which were agitated before me in support of the order, relating to the transfer of Mr. Tariq Pervez.
5. In respect of the other employee namely Mr. Ameer Ahmed, the following grounds are urged before me by the learned counsel for the applicant-Bank:---
(5) Mr. Ameer Ahmed was not an office bearer of the Union.
(6) Even if he is assumed to be an office-bearer of the union, his dismissal from service was justified.
6. It was further urged by the learned counsel, on a broader plane:-
(7) C.P.C. Is not applicable to the proceedings before the learned Labour Court and, therefore, the Labour Court had no power to invoke the provisions under Order 39, rules 1 and 2, C.P.C.
(8) Since the dismissal/transfer was not subject-matter of industrial dispute before the learned Labour Court, no relief in the respect could be granted.
(9) Section 47 read with section 60 pertains to criminal jurisdiction of the Court and as such, in the exercise of criminal jurisdiction, no stay order can be granted.
(10) Even if assuming that section 47 has been violated, the order which has caused the violation, cannot be stayed unless proceedings under section 25-A are initiated.
7. As regards the pleas, relating to transfer, learned, counsel for the applicant Bank, referring to sections 8A, 15 and 47 of I.R.O., 1969, submitted that section 47 is attracted where the concerned employee is discharged, dismissed or otherwise punished, whereas, section 8-A refers to. Transfer, discharge, dismissal Or otherwise punished. Similarly, section 15(1)(d) which also refers to discharge, dismissal or transfer, in the ,event of the worker participating in the Union activities. The word "transfer" though used in sections 8-A and 15, but has not been used in section 47. Elaborating his submission. Mr. Bajwa submitted further that section 47(2) concerns with discharge, dismissal or otherwise punishment for misconduct. It is noticeable that the words "for misconduct" do not occur in section 8-A or section 15. According to him, therefore, even if the worker is discharged, dismissed or otherwise punished, not for misconduct, section 47 will not be attracted.
8. In support of his plea, learned counsel placed his reliance on an Indian authority of the Supreme Court, on the point that the dismissal, discharge or punishment has to be "for misconduct". It is reported as Air India Corporation, Bombay v. Rebello and another (AIR 1972 Supreme Court 1343).
Reference was made to para.9 of the judgment, wherein it has been observed that: "It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected. This ruling is on sections 33 and 37 which, according to the learned counsel, are, in parimateria similar and same to section 47 of Pakistan. The second authority, which the learned counsel has cited, is reported as Zeal Pak Cement Factory Ltd., Hyderabad v. The Chairman, West Pakistan Industrial Court, Lahore (PLD 1965 Supreme Court 420; also reported as 1965 PLC. 216).
Though the whole judgment appears to be relevant and supportive to the submission of the learned counsel for the applicant Bank, reference may, however, be made to the last paragraph, which is reproduced as under:-- "In the present case, there is no manner of doubt that there was a reorganisation carried out for a bona fide purpose of the industry, and the notices of discharge were given exclusively in relation to the redundancy which thus resulted and without any taint of victimization. There was nothing in the nature of punishment or vindictiveness involved. We consider that the action of the Factory in respect of the employees retrenched in this case as surplus to requirements being bona fide, it did not attract the control of the Industrial Court under section 30 of the Ordinance, and we accordingly allow this appeal and set aside the order of Chairman directing the reinstatement of these 19 workers. We make no order as to costs."
8. The third authority, relied upon by the counsel on the point has been reported as Syed Momin v.
Rashid Textile Mills Ltd. And 3 others (1987 PLC 852) by a learned Single Bench of our own High Court wherein Zeal Pak 's case has also been referred to, it was observed that:- ' . A plain reading of subsections (1) and (2) of section 47 of the Ordinance clearly indicates that the restrictions placed thereby on the powers of the employer to discharge or dismiss workmen or officers of a registered trade union relate only to such cases where services of a workman or an officer of a registered trade union have been terminated as a result of punishment. This is clearly indicated by the words 'or otherwise punished' occurring in both the subsections. Although it is true that ordinarily the word 'discharge' as distinguished from 'dismissal' does not donate termination of employment as a measure of punishment, but the language used by the Legislature in section 47 of the Ordinance does not admit of any other construction. Any other interpretation, in my opinion, would lead to absurdities, as it cannot be assumed that a workman cannot be discharged on account of superannuation or on becoming surplus, during the pendency of an industrial dispute.
Reference in this respect may also be made to the judgment of the Supreme Court in the case of Zeal Pak Cement Factory Ltd. v. Chairman, West Pakistan Industrial Court (PLD 1965 SC 420) wherein the Supreme Court while interpreting similar provisions of section 30 of the Industrial Disputes Ordinance, 1959 came to the same conclusion. In that case, surplus staff of the petitioner therein had been discharged from service. Mr. Shafiq Qureshi has, however, argued that the case decided by the Supreme Court is distinguishable as there is no provision corresponding to subsection (2) of section 47 of the Ordinance in section 30 of the Industrial Disputes Ordinance,1959. Although it is true that alike of section 47(2) cannot be found in the Industrial Disputes Ordinance, but I find that the case decided by the Supreme Court is still attracted to the facts of the present case' as the words 'discharged, dismissed or otherwise punished' have been used in the same context in sections 30 and 47 of the two Ordinances. In any case. It would be wrong to assume that. 'discharge' always has reference to termination of employment otherwise than by way of punishment. In this connection, I would like to quote from the judgment of the Allahabad High Court in Chaman Lal Seth v. State of Uttar Pradesh (AIR 1957 All. 241) as it was held in that case as under:- - ' Where an order in terms states that the Government servant is discharged from service, the use of the word 'discharged' is not conclusive. It is the substance of the matter which must be looked at and if in fact the servant had been removed by Government from the service as a punishment, the use of the word 'discharge' would amount to dismissal or removal'."
It is, therefore, apparent that a case of simple transfer, without any element of punishment, would not fall within the purview of section 47 of the Industrial Relations Ordinance.
9. It may be observed that mere transfer does not change the terms and conditions of the employment. In fact, the transfer itself is included in the terms and conditions of the employment.
The rules of the bank do also. Provide the same. There can be no dispute about it. It is a settled law that a civil servant has no vested right to remain posted at a particular place of his choice. The worker of the Bank was liable to serve at any place in the whole of Pakistan and could be transferred from one place to another in exigency of the service for administrative reason. In the instant case, the employee was ordered to be transferred from Head Officer to a branch of the Bank in the same city, which is nothing but a normal exigency of service and can, in no circumstances, be considered to be a punishment. If an authority is needed, the same may be found in the case reported as Tahira Fazeelat and others v. Province of Punjab and others (1998 PLC (C.S.) 268). In any case, the transfer of a worker, within the same city, from Head Office to a Branch or from one branch to another branch, does not prejudice the employees. Even otherwise, no prejudice has been shown in the application except that he was an office-bearer of the union, which will be taken note of while discussing the provisions of section 47.
10. Mr. Bajwa has repeated his arguments which he made before the learned Labour Court with reference to section 27-B of the Banking Companies Ordinance, 1962 wherein it has been specifically provided that no officer or member of a trade union shall carry on trade union activities during office hours (underlined by me). Therefore, the plea that he will be prejudiced by transfer from Head Office to Nazimabad Branch, is of no consequence. Even otherwise he is free to carry on trade union activities as an officer or office-bearer (with capacity has been challenged by Mr. Bajwa, not only before the learned Labour Court, but before this Tribunal too after office hours).
11. On the plea that Mr. Tariq Pervez was not an officer-bearer of the union, learned counsel referred to page 141 of the memo. Of revision, which is a list of office-bearers, as approved by the Joint Director Labour on 8-12-1996. The name of Mr. Tariq is included in the list. Reference is also made by the learned counsel to Article 2-B of the Constitution of the Union (page-137) which states that the tenure of the office-bearers will be only for two years after election. Mr. Pervez appears to have been declared office-bearers on 8-12-1996 as per notification, issued by the Joint Director Labour (page 141). It, therefore, appears that on the expiry of the two years, after the election, on the date when he was transferred, his tenure as office-bearer of the union, has come to an end, as per Article 13-B of the Constitution. Thus he was no more an office-bearer of the union.
12. As regards Mr. Ameer Ahmed, it was pleaded by the learned counsel that he was not an office- bearer of the union. Reference was again made to page 141, annexed with the memo. Of revision, which is a list of office-bearers and does not make a mention of Mr. Amer Ahmed holding any office in the union. It may be mentioned that it is the authority of the Labour Directorate to include or exclude the name of an office-bearer; as provided. Under section 8 (3) of-the I.R.O., 1969.
Certainly, non-inclusion of the name of Mr. Ameer Ahmed, in the list of office-bearers is apparent on the face of record. Moreover, the assertion that the respondent's union addressed a letter to the management that so and so is office-bearer of the union, holds no water.
13. In any case, Mr. Ameer Ahmed was dismissed from service after a charge-sheet and enquiry.
Enquiry report is available on record (pp. 147-175). Mr. Bajwa submitted that the learned Presiding Officer, without going into the merits of the case and that too, without recording evidence, has given a finding that the dismissal of Mr. Ameer Ahmed was in violation of the provisions of section 47 of the I.R.O., 1969 However, no relief was given to him. I, therefore, do not want to deal with this matter any more. The grievance of Mr. Bajwa is that in view of the remarks/observations, given by the learned Presiding Officer, criminal proceedings have been initiated by the union. Since the criminal proceedings are still pending, it will be unfair on my part to make any observations with regard to those criminal proceedings. It will suffice to say that the learned Presiding Officer will not be influenced by the remarks of his learned predecessor and decide the case on merits after proper hearing and recording evidence and, in no way, be influenced by the observations, as the order was passed on an interlocutory application, without going into the merits of the-case.
14. Mr. Bajwa, then made his submission about the broad principle, laid down by our superior judiciary that the relief, which has not been claimed in the main application, cannot be granted.
Reference was made to Marghub Siddiqi v. Hamid Ahmed Khan and 2 others (1974 SCMR 519).
15. Mr. Bajwa, dealing with the point of transfer, submitted lastly that I.R.O., undoubtedly, makes provisions under section 36 of applying certain provisions of the C.P.C. But it is not open to the Labour Courts to invoke the powers under Order 39, Rules 1 and 2, C.P.C. For granting injunction and, that too, of a prohibitory nature and/or the C.P.C. Referring to the provisions of sections 25-A(5), 32(4) and 36(2), it was submitted by the learned counsel that under section 25-A (5) the Laboure Court is bound to go into all the facts and then pass the order. Section 32(4) provides only for power to give an interim award and section 36(2) enunciates the provisions in relation to C.P.C.
None of them provide for granting interim relief under C.P.C. The non-inclusion of the power to invoke the provisions of Order 39, Rules 1 and 2, C.P.C., is understandable in view of the fact that the provisions of section 32(4) do make a specific mention of interim award. In that case, there would have been no necessity of providing subsection (2) for passing an interim award. It is noticeable that application was filed by the union under section 32(1-A) which relates to award only, which.
Can only be passed on in industrial dispute. The points, raised in the inter locutory application did not and cannot constitute industrial dispute by itself. The provisions of section 2 (xiii) defines the industrial dispute.
16. In any case, and without prejudice, for the grant of qua interim prohibitory injunction, the three ingredients which are essential and have been established by the superior judiciary of Indo-Pak Sub-continent, are absent, in the order, impugned before me. They are (i) prima facie .Case for C the issuance of injunction, (ii) balance of convenience, and (iii) irreparable loss to the party, seeking interim injunction. Reliance is placed on several authorities by the counsel, but I would like to quote only one of them, which is reported as Province of West Pakistan through the Deputy Commissioner, Hyderabad and another v. Malik Asghar Khan (1971 SCMR 569).
17. In any case, learned counsel submits that the interim injunction, granted by the learned Presiding Officer already lapsed on the expiry of six months. In this respect, reference was made to Rule 2-B, C.P.C. Added subsequently in or about 1994, which provides that, "the order of injunction made under rule 1 or 2 after hearing the parties or after notice to the defendant shall cease to have effect on the expiration of six months unless extended by the Court after hearing the parties again and for reasons to be recorded for such extension".
18. Another authority, which needs to be taken note of which is very relevant, is reported as Islamic Republic of Pakistan v. Muhammad Zaman Khan and others (1997 SCMR 1508) wherein the application of the provisions of Order 39, rules 1 and 2, C.P.C., in a service matter, was considered which reads as under:- "11. As regards the merits of the case, it may be pointed out that it is a well-settled proposition of law that the object of passing of an interlocutory order of status quo is to maintain the situation obtaining on the date when the party concerned approaches the Court and not to create a new situation. Another well-settled principle of legal jurisprudence is that generally a Court cannot grant an interlocutory relief of the nature which will amount to allowing the main case without trial/hearing of the same. In this regard, reference may be made to the judgment of this Court in the case of Qazi Inam-ul-Haq v. Heavy Foundry and Forge Engineering (Pvt.) Ltd. And another (1989 SCMR 1855), in which the petitioner had been prematurely retired from service. He filed a suit and obtained a temporary injunction from a learned Civil Judge, which was vacated by a Teamed Civil Judge, which was vacated by a learned Additional District Judge. The petitioner then preferred a revision petition before the High Court of Sindh, which was declined for the following reasons:-- '(a) The order of retirement that already taken effect before the civil suit was instituted to challenging it; and
(b) even if the petitioner had merely an arguable case, the other two essential factors, i,e, presence of balance of convenience, which is in fact balance of inconvenience and causing of irreparable loss did not exist.'
' The above case supports the view which we are inclined to take as this Court declined to interfere with the above order.
12. In the present case as stated hereinabove, pursuant to the notification of termination of services of the respondents, the respondents handed over the charge of their officers though, according to them, under protest. Admittedly, they were not in office for several months when they filed their aforementioned writ petitions and, therefore, the learned Judge in Chambers could not have created a new situation by suspending the termination orders. In other words, he could not have reinducted the respondents into service before the disposal of their writ petitions. We are, therefore, inclined to hold that the impugned interlocutory orders are not sustainable in law."
19. The last ground, as urged by the learned counsel for applicant relating to the application of section 2-A of Service Tribunals Act, 1973, added on 10-6-1997. In view of this newly-added provision, the Labour Court had no jurisdiction to grant any relief as to the termination, dismissal, retrenchment or even transfer.
20. A Labour Court, after the insertion of section 2-A in the Service Tribunals Act, can only entertain and adjudicate in the matter of an industrial dispute under section 32 of the I.R.O., 1969 and the transfer, in the instant case, was not and cannot be matter of industrial dispute. In fact, it has not been included as such. The prayer clause reads as under:-- "It is, therefore, prayed that this Hon'ble Court may be pleased to adjudicate upon the demands/industrial dispute raised by the applicant union and may further be pleased to pass an award in favour of the applicant, allowing the demands."
21. Mr. Latif Saghar, learned counsel for the respondent union relied on a case reported as Habibul Haq v. Sargodha Vegetable Ghee and General Mills, Faislabad and another (1991 PLC 899) wherein it has been observed that: "It is clear from section 36 of I.R.O. That a Labour Court shall be deemed to be a Civil Court. It would mean that Order III, rule 1 of C.P.C. Would also be applicable to proceedings before a Laboure Court Steps mentioned in Order III, Rule 1 can be taken by party in person or by his recognized agent or by a pleader appearing on his behalf". It was, thus, held that, "there is no express bar contained in section 25-A(4) to making of an application by a pleader on behalf of worker and same can be presented by an Advocate by virtue of Order III, rule 1 of C.P.C."
There can be no cavil that under section 36 of I.R.O., Labour Court is deemed to be a Civil Court, but here the specific question is that of the application of Order 39, Rules 1 and 2, C.P.C., in the Labour Courts. Therefore, to me, this ruling is distinguishable inasmuch as we are concerned with the application of Order 39, Rules 1 and 2, C.P.C. Mr. Saghar further submitted that the respondent's case is an industrial dispute brought under section 32(1-A) which is broader than the scope of section 25-A(4), Reliance is placed on an unreported decision, passed by a learned Single Judge of the High Court of Sindh in C.P. No, S-498 of 1998. It was a case of reinstatement with back benefits.
The petitioner was ultimately dismissed and so the injunction application. Incidentally, it was observed that no illegality was committed by the learned Labour Court while passing an interim injunction/order, restraining the employers from terminating the service of the applicant before it.
The observation as to the grant of interim injunction seems to be made incidentally. There appears to be no serious discussion on the applicability of Order 39, Rules 1 and 2, C.P.C. To a proceedings in the Labour Courts. The facts of this case, too, are quite distinguishable inasmuch as I am not considering the case under section 25-A, but an application under Order 39, Rules 1 and 2, C.P.C., made in an application under section 32(1-A), moved by the union for seeking relief other than what has been granted.
22. He further relied on a case reported as Packages Ltd. v. Pir Muhammad and 11 others (1982 SCMR 716). It was again a case under section 25-A of I.R.O., 1969 and the question was that of consolidation of petitioners by Labour Court to hold joint trial. It being a procedural matter, the Labour Court, it was held, was not required to invoke any inherent power for directing such order.
The discretion of inherent jurisdiction of the Court and procedure ancillary or incidental to main jurisdiction were discussed in detail. The joint trial were held to be incidental and ancillary to the main jurisdiction to adjudicate a case under section 25-A. This case too, is distinguishable on facts as well as on law both.
23. Learned counsel also relied on a case reported as Sindh Employees' Social Security Institution and another v. Adamjce Cotton Mills Ltd. (PLD 1975 Supreme Court 32). This case is based on a different statute i,e, the Provincial Employees' Social Security Ordinance, 1969, the provisions whereof. I am not supposed to examine in this case; as such, the case is distinguishable. There is no reference to any provision of the I.R.O., 1969 in the cited case.
24. Mr. Latif Saghar further relied on the case reported as Messrs U.D.L. Industries Ltd. v. Hongunang Electron Tube Plant and others (PLD 1997 Karachi 553) by a learned Single Judge of the High Court of Sindh, passed in a suit. It has no relevance to a ease under Labour Laws. As such, it is distinguishable on fact and law both.
25. In the case of L.I.C.I./I.C.A. Employees' Union v. Pakistan Insurance Corporation, Karachi and another (PLD 1975 Karachi 858), by a learned Single Judge of the Sindh High Court. It has been, inter alia, held that interim order to ensure due implementation of any final order that may be passed would appear to be necessary and incidental while considering the application of sections 34 and 36 of I.R.O., 1969 read with sections 151 and 141 of the C.P.C. This case no doubt, seems to be of some help to the respondent, but on facts, it is distinguishable inasmuch as, the prohibitive order seems to be based under section 47 of the I.R.O. In the instant case, which is the main question.
26. In reply to the submission made by Mr. Bajwa, learned counsel for the applicant on the point about the claim of Tariq Pervez, to be an officer-bearer, as claimed by the respondent union, Mr. Saghar stated that Mr. Tariq Pervez was office-bearer of the union on the date, he was transferred and he still continues to be so. In this respect, he also refers to section 10 of the I.R.O., 1969, where the dispute can be resolved by the Registrar of Trade Unions.
27. On my query, since how much time Mr. Tariq Pervez has been working in the Branch. Mr. Saghar was not able to answer the question, but Mr. Bajwa submitted that as far as he knows Mr. Pervez has been working in the Head Office since last four years because Mr. Bajwa was Legal Advisor to the Bank for last four years.
28. Mr. Saghar, in reply to the submission relating to Rule 2-B of Order 39, C.P.C. Made by the learned counsel for the Bank, submitted that the provisions of Rule 2-B of Order 39, C.P.C., the period fixed therein is extendable. He further submitted that the rule is applicable to Court, subordinate to High Courts whereas the Labour Courts are not subordinate to the High Court so the provisions of Rule 2-B will not be attracted to the facts of the present case. The argument is fallacious. It suffers from self-' contradition. On the one hand. Mr. Saghar argues that the Labour Court is deemed to be a Civil Court under section 36 of I.R.O. And the provisions of C.P.C. Including Order 39, Rules 1 and 2 are applicable to it whereas on the other hand, he submitted that the period fixed under Rule 2-B of Order 39, C.P.C. Is not applicable to Labour Courts. The plea, is therefore, misconceived and deserves no consideration.
29. Mr. Bajwa, exercising the right of reply, submitted that in the presence of the record in the lower Court as well as in this Tribunal, the statement of the counsel is of no avail, as it is a matter of record.
30. The provisions of section 10 of the I.R.O., 1969, referred to by Mr. Saghar, provides for the conciliation of the Union through Labour Court on making an application by the Registrar Trade Unions, which is not the case here.
31. Having thoughtfully considered, the argument and plethora of authorities, cited before me by both the learned counsel for the parties. I find myself in agreement with the submissions, made by the learned counsel for the applicant Bank. The provisions of section 47 of the I.R.O., 1969 are not attracted to the case of transfer of an employee, unless it is on the charge of misconduct. In any case, the transfer of Mr. Tariq Pervez from the Head Office to a Branch, in the same city, does not cause prejudice to him. Moreover, it does not violate the terms and conditions of his service. In fact, it is with the ambit of the terms and conditions of his service. The order of the learned Labour Court, prohibiting the applicant Bank from giving effect to the letter of transfer, seems to be outside the purview of section 47 of the I.R.O., 1969, of which the learned Presiding Officer perhaps, seems to be mindful and that is why he invoked the provisions of Order 39, Rules, 1 and 2, C.P.C. Since the transfer was not subject-matter of industrial dispute before the learned Labour Court under section 32(1-A). The mere transfer from Head Office to a branch or from one branch to another, in routine, without any charge against them, could not form the subject-matter of an industrial dispute under section 32(1-A) read with section 47 of I.R.O., 1969. It is a settled principle of law that a thing which cannot be done directly, cannot be allowed to be done indirectly. A relief, which has not been sought in the main case, cannot be given as an interim measure. Where an industrial dispute has been filed by a Union, relief on individual case, in such a fashion, seems to be improper. Moreover, on the facts on record, it appears that Mr., Tariq Pervez, on the day when the order of transfer was made by the Bank or at the most when the prohibitory order was passed by 'the learned Labour Court, it has been satisfactory explained that he was an office-bearer of the union; much less to say that he was transferred due to any misconduct or on any charge. In any case, the said prohibitory order, as provided under rule 2-B of Order 39, C.P.C., was to remain in the field unless extended for six months only, which has already expired.
32. As regards the case of Mr. Ameer, since he is alleged to have been dismissed on the charge of misconduct, after enquiry and no relief has been granted to him by the learned Labour Court, about, which I have made my observations in para.13 of this order. The learned Labour Court will not be influenced by the observations, made by the learned Presiding Officer in his order, impugned before me, and decide the case on merits.
33. In view of the above discussions, the impugned order, on interlocutory application, was set aside and the revision application was accepted by my short order, just after the conclusion of the arguments on 30-11-1999, for the reasons to be recorded separately, which are recorded as above.