' This appeal under section 22-D of Industrial Relations Ordinance, 1969 is directed against an interim order passed by a Single Bench of this Commission on 3-3-2000 where by respondent No,2 was allowed interim relief by suspending the order of his transfer, dated 23-2-2000 and directing the appellants to allow him to continue his duties as usual till further order.
2. Facts giving rise to this appeal briefly are that by order, dated 23-2-2000 passed by the Divisional Superintendent Pakistan Railways, Rawalpindi, Ishtiaq Ahmed Aasi respondent No,2 who at the relevant time was working as UDC in Civil Defence Organisation of Pakistan Railways, Rawalpindi was transferred and posted at Multan in Way and Works Section against an existing vacancy.
3. Feeling aggrieved, respondent No,2 filed a petition under section 22(8)(g) of Industrial Relations Ordinance, 1969 before the Single Bench of this Commission to assail his transfer from Rawalpindi to Multan contending that he is Secretary General of Pakistan Railways Employees Union (PREM)/C.B.A. The appellant were totally against his lawful and legitimate trade union activities which- they have been coercing him to quit and having failed in their efforts, they passed the impugned order of his transfer from Rawalpindi to Multan with a view to deprive him of hi lawful trade union activities. It was further alleged by respondent No,2 that his transfer "would totally spoil the working of CBA Union in Open Line Establishment". The case set up by the respondent, of- course, was that his transfer was ordered by way of punishment on account of his lawful trade union activities which action, it was alleged, was in violation of the provisions of section 15(1)(d) of Industrial Relations Ordinance, 1969. It was, accordingly, prayed by the respondent that his petition may be accepted, the appellants be directed not to commit any act of unfair labour practice and the impugned order of his transfer be set aside. Alongwith the main petition, respondent No,2 also filed an application for stay under Regulation 32(2) of National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 seeking suspension of the impugned transfer order; further alleging that neither transfer order nor any relieving order had been served on him.
4. The main petition accompanied by the stay application was filed in this Commission on 3-3- 2000 and on the same day, the learned Senior Member after hearing the Representative of Respondent No,2, granted him interim relief by suspending the transfer order and directed the appellant to allow the respondent to continue his duties as usual. Pre-admission notice was also issued to the appellants for submitting parawaise comments and reply to the stay applications on 15-3-2000. It is this interim stay order which has been impugned by the appellants.
5. We have heard the learned counsel for the appellants as also the Representative of respondent No,2 yesterday and also today. The latter reiterating the case of respondent. No,2 as set up in his petition has contended that he is the Secretary General of Pakistan Railway Employees Union/CBA and in that capacity he has been vigorously espousing the cause of the workers which offended the appellants who wanted him to give up his trade union activities and on his refusal to oblige them, he has been transferred from Rawalpindi to Multan with a view to vcitimize him and to prevent him from participating in his lawful trade union activities. Reliance for this contention has been heavily placed on a fax letter, dated 16-2-2000 and it is submitted that transfer so ordered is clearly an act of unfair labour practice which can be dealt with by this. Commission under section 22-A(8)(g) of I.R.O., 1969. The Representative of respondent N.12 has further sought to contend that the impugned transfer order was never served upon respondent No,2 and, therefore, the learned Member could validly suspend the same with a view to prevent the occurrence of further unfair labour practice as envisaged by Regulation 32(2) of N.I.R.C. (P&F) Regulations, 1973..
6. Learned counsel for the appellants has quite fairly admitted that Respondent No,2 is the General Secretary of PREM Union/CBA (Open Line Establishment) but he has contended that his transfer from Rawalpindi to Multan was not ordered on account of his lawful trade union activities and, therefore, his case does not fall within the purview of section 15(1)(d) of I.R.O., 1969. According to the learned counsel, impugned transfer of the respondent was made in the exigency of service and to meet the departmental requirements. He has pointed out in this behalf that the Civil Defence Organization of Pakistan Railways in which the respondent was 'working as UDC was disbanded in pursuance of decision taken by the National Security Council and the Cabinet in .Their meeting held on 29-12-1999 and it was further decided to place all manpower, transport, communication and other allied facilities of the said Organization at the disposal of the Vigilance Directorate, Pakistan Railway Head Quartes Office, Lahore which was to order further posting of the manpower.
Reliance for this has been placed on an Organization Order No,700. Dated 8-2-2000 (Annexure-A with the appeal). Learned- counsel sought to question the maintainability of the petition filed by respondent No,2, by placing reliance upon Notification, dated .18th October, 1993 (Annexure-E with the appeals) issued by the Government of Pakistan, Ministry of Railways, whereby 20 Railway Lines mentioned therein were classified as MOD (Ministry of Defence) Lines making Industrial Relations Ordinance, 1969 inapplicable to the employees employed in connection with those lines or any installations connected therewith or incidental thereto including installations such as Sheds and Washing Lines, etc. It has been further contended by the learned counsel that respondent No,2 was transferred on 23-2-2000 and on the same day, he was spared/relieved vide notice issued by the Divisional Civil Defence Inspector, Pakistan Railways (Annex-C with the appeal), to give effect to his transfer, Respondent No,2, however, refused to join the duty at his new place of posting. Learned counsel further argued that the posting/transfer is an inherent right of the Administration/Establishment which right having been exercised to utilise the services of the respondent against an existing vacancy at Multan, the same could not be challenged as an unfair labour practice. The learned counsel also raised an objection that by virtue of section 2-A inserted in the Federal Service Tribunal Act, 1973, the remedy of the respondent lay before the Service Tribunal and this Commission had no jurisdiction to interfere in the matter.
7. We have given our anxious consideration to the submission made by the learned counsel for the appellants and the Representative of Respondent No,2. On our query, we have been informed that Respondent No,2 joined Pakistan Railways as LDC in 1976 and was posted in Carriage Factory, Islamabad, where he worked from 7-2-1976 to 14-1-1987. He was promoted as UDC on 15-1-1987 and was posted in Civil Defence Organization of Pakistan Railways in Rawalpindi where he remained posted until 23-2-2000, when he was transferred to Multan. This position has not been denied by the Representative of Respondent No,2. This shows that ever since the Respondent joined service in Pakistan Railways in, the year, 1976, he remained posted in Islamabad/Rawalpindi i,e, for almost 24 years. Now merely because he happens to be the office-bearer of the CBA Union does not give him a licence to remain posted at a particular place throughout his service career. Needless to observe that transfer is a term and condition of service and it is the inherent right of the employer to transfer the employee whenever the situation so demands. In the present case, the position taken by the appellants is that the transfer of the respondent was made in the exigency of service and it has been explained that the Civil Defence Organization of Pakistan Railways, where the respondent was working as UDC was disbanded in pursuance of the decision taken by the National Security Council and the Cabinet and it was thereafter that the respondent was transferred to Multan against the existing vacancy. In the circumstances, it cannot and should not be readily accepted that just because the respondent was an, office-bearer of the CBA Union, his transfer was essentially an act of unfair labour practice. It may pertinently be observed that in a case like the present one, even for forming a prima facie view, there must be strong and sufficient material on the record, clearly indicating that the impugned transfer was motivated by any of the reasons specified in various clauses of section 15(1) of I.R.O., 1969. No such material has been pointed out to us except the aforementioned Fax letter and it is a matter of dispute whether the transfer of the respondent was the result of letter in question and whether the activity referred to therein could be said to be lawful. For all these reasons. We are no quite satisfied that there existed any prima facie case of unfair labour practice. Before proceedings further, we would like to highlight the proposition which by now is well-settled that before granting interim relief, the Court or the Tribunal must find whether there existed a prima facie case in favour of the person seeking the interim relief and it must also examine the concepts of balance of convenience/inconvenience and irreparable loss.
8. Apart from what has been stated above, from the documents placed on record. We find that the case of respondent No,2 did not fall within the purview of Regulation 32(2) which was invoked by him to seek suspension of the order of his transfer. Para. (2) of Regulation 32 deals with the cases of unfair labour practice which are likely to occur and it provides for the measures which the Commission may take to prevent the occurrence of unfair labour practice. There is plethora of case-law laying down the proposition that Regulation 32(2) is attracted only when there is some apprehension that an unfair labour practice is likely to occur, to prevent which some interim measures are called for. The interim relief of preventive/prohibitory nature can thus be granted only in case where unfair labour practice is likely to occur, where, however, an unfair labour practice has already been committed, it is taken care of in para. (1) of Regulation 32 which provides that the Commission may deal with such a case under section 25-A, section 34 or section 53, keeping in view the nature of the case. Proviso to para (1) lays down that the Commission while awarding punishment under section 53 may also direct the reinstatement of a worker and allow consequential benefits to him. In the present case, unfair labour practice, if any, had already been committed. The order of transfer was passed on 23-2-2000 followed by a relieving notice issued by the Divisional Civil Defence Inspector, Rawalpindi on the same day, with a view to give effect to the transfer order. That being so, assuming without holding that the order of respondent's transfer was passed with a view to punish him for his trade union activities or to prevent him from performing his trade union activities at Rawalpindi as alleged by him, since the unfaiLlabour practice, if any, stood committed on 23-2-2000 operation of the impugned transfer order could not be suspended under Regulation 32(2) of the Regulations, 1973. It may also be pertinent to observe at its stage that under Regulation 32(2), the Commission has to hold some kind of enquiry, to satisfy itself,that any unfair labour practice is likely/intended to be committed. In the .Present case, the learned Single Member has passed the impugned interim order without holding any such enquiry. The impugned order was in fact passed ex parte.
9. Upshot of the above discussion is that the impugned order having been passed by the learned Member, mechanically and without any application of mind to the factual and legal aspects governing the grant of interim relief including the concepts of balance of convenience/inconvenience and irreparable loss. We allow this appeal and set aside the impugned order, with the direction to the learned Member to dispose of the Respondent's petition as expeditiously as possible.