' MUHAMMAD MOOSA K. LAGHARI, J.---By this petition the petitioners have impugned the order dated 4-5-2001 passed by respondent No,1, learned Chairman, Sindh Labour Appellate Tribunal, on Transfer Application No,16 of 2001 tiled by respondent No,2 whereby Case No,126 of 2000 under section 25-A of Industrial Relations Ordinance, 1969. Pending before Sindh Labour Court No,V was transferred to Sindh Labour Court No,IV.
2. The facts of the case in brief are that respondent No,2 filed a Grievance Application being Case No,126 of 2000 under section 25-A of the I.R.O. 1969 in the Vth Sindh Labour Court, Karachi, where it was pending adjudication. During pendency of the case respondent No,2 appears to have moved an application before respondent No,1 praying therein for transferring his grievance application to another Labour Court as according to him he has lost confidence in the said Court.
' Learned Chairman, Sindh Labour Appellant Tribunal called for comments from the Presiding Officer of the concerned Labour Court and adjourned the matter to 4-5-2001. On the said date learned Chairman, Sindh Labour Appellate Tribunal, after perusal of the comments proceeded to pass the impugned order for transfer of the case which is the subject-matter of this petition.
3. We have heard Mr. Mahmood Abdul Ghani, learned counsel for the petitioners and Mr. Sarwar Khan, learned Additional Advocate-General for respondent No,1 who appeared in pursuance of pre-admission notice.
4. It was contended by learned counsel for the petitioners that a party could not insist for hearing of his case by a particular Judge. Learned counsel vehemently contended that the said order of transfer was passed without notice to the petitioners, and behind their back as such the petitioners were condemned unheard. It was further contended that the learned Chairman, Sindh Appellate Tribunal travelled beyond jurisdiction, while passing the impugned order, the same was violative of the provisions contained under section 38 of the I.R.O. 1969, and was wholly unjustified. It was passed in excess of the powers of the Tribunal and was in fact a non-speaking order wherein no reasons were assigned. It was vehemently argued that the learned Sindh Labour Appellate Tribunal which stands at the apex of the Sindh Labour Judiciary ought to have protected the good name of its subordinate officers by directing the respondents to establish the allegations of dishonesty, instead without notice to the petitioners case was transferred from Labour Court No,V to Labour Court No,IV which amounts to setting wrong judicial precedent. Learned counsel urged with vehemence that this Court must invoke the Constitutional jurisdiction to put curbs on this practice.
In support of his contention learned counsel has relied upon (i) PLD 2001 Karachi 127, (ii) Judgment of the High Court of Bombay in the case of Enterenonde Polycoaters Ltd. v. Kamgar Sabha, Thane and another, passed on a Writ Petiiton No,5022 of 1996, reported in II LU, and (iii) Judgment of the Supreme Court of India in the case of Management of M/s M:S. Nally Bharat Engg. Co. Ltd. v. State of Bihar and others, passed in C.A. No, 1102 of 1990, reported in II LU.
5. Conversely learned Additional Advocate-General, appearing on behalf of the respondent No,1 contended that under section 38(7) of the I.R.O., 1969, the Tribunal was competent to transfer the case from one Labour Court to any other Labour Court. Learned Additional Advocate-General also invited our attention to the comments submitted by the learned Presiding Officer, Sindh Labour Court No,V who besides denying the allegations levelled against him had himself requested that the case may be transferred to some other Court. It was further argued that no prejudice was caused to the petitioners.
6. We have considered the arguments advanced at the, bar and also examined the case-law relied upon by the learned counsel for the petitioners.
7. At the outset we deem it appropriate to discuss the case-law placed before us.
8. In the case referred by the learned counsel for plaintiff at Seria' No,(i) it has been held by a Single Bench of this Court that a party could r It insist that his case should be heard at a particular place or by a particular Judge. In the case at Serial No,(ii) an administrative order of transfer after rejection of an application for transfer moved by the party on the ground of bias was held to be not justified. Yet in the last case, cited from Indian Jurisdiction decision of the Government transferring an industrial dispute between Management and the Union from one Labour Court to another Labour Court without notice to the Management was held to be vitiated.
9. Having given earnest consideration to the case-law, referred herein above we can say without slightest doubt that the same has little relevant so far as the instant case is concerned.
10. Section 38(7) of the I.R.O., 1969, provides as under:- "38. Labour Appellate Tribunal.- (1)
(2) ..
(3) .
(4) .
(5)
(6)
(7) A Tribunal. May on its motion or on the application of a party, transfer any application or proceedings from a Labour Court within its jurisdiction to any other such Labour Court."
11. It will be clearly evident from the above legal provisions, that the Labour Appellate Tribunal has the jurisdiction to transfer any application or proceedings from a Labour Court within its jurisdiction to any other such Labour Court, on its own motion or on the application of the party. It does not put fetters on the Tribunal to transfer the case without notice to the opposite party. In the instant case learned Chairman in the first instance called for the comments from the Court concerned. In the comments submitted by the learned Presiding Officer, Sindh Labour Court No,V Karachi. The allegations levelled by respondent No,2 were denied. However, in the concluding para. Learned Presiding Officer himself requested that the case may be transferred to some other Court.
Apparently this observation/request was made by the learned Presiding Officer in order to avoid any embarrassm ent. We feel that the approach of the learned Presiding Officer was absolutely correct, being in consonance with the fundamental principles. On perusal of comments furnished by the learned Presiding Officer, learned Chairman disposed of the application with the following observations.
"In the end of comments the learned Judge has stated that he has no objection if case is transferred. Since the Transfer Application has further created bitterness between the Court and the applicant it would be desirable that to avoid further aggravation of the situation the case is transferred to some other Court. Accordingly the case is withdrawn from the file of Labour Court No,V and is transferred to Labour Court No,IV. Thee appellant is directed to appear before learned Labour Court No,IV on 18th instant. The Transfer Application stands disposed of."
12. Though section 38(7) of I.R.O., 1969, does not provide for notice to the other side, yet keeping in view the well-known maxim audi alterm partum we inquired from Mr. Mahmood Abdul Ghani, learned counsel as to in what manner the petitioners were prejudiced by transfer of this case to make them feel to have been condemned unheard. But the learned counsel had hardly any explanation to offer. There can be no two opinions with regard to the fundamental rule that nobody is to be condemned unheard and any order affecting the rights of the party is to be passed only after hearing the party concerned. However, learned counsel for the petitioners was unable to show that any of his rights were adversely affected or that any prejudice was caused to the petitioners by transfer of this case from one Labour Court to another Labour Court which power law has vested in the Labour Appellate Tribunal.
13. We must express our firm view 'that notice is a normal procedure and is also desirable so that the opposite party is able to place its point of view before the Court, if it has any real objection.
However, an order passed without such notice which also, prima facie, was to suit the convenience of both the parties equally and no prejudice having been established as a result of the transfer without notice, we think that such order of the transfer did not suffer from any inherent fatality. It is a cardinal principle of law that interpreting the procedure on a point such as one before us, the objective ought to be to make it workable and not to enforce it for the purpose of frustrating the ends of justice, by a resort to technicalities.
14. It may not be out of place to mention here that section 24 of the Code of Civil Procedure which gives general powers to the High Court and District Court of transfer and withdrawal of suits, appeals or other proceedings, requires a notice to be given to the opposite party when transfer is to be made on the application of a party, yet it has been held that failure to do so is merely an irregularity especially when no prejudice is proved.
15. In his comments on Code of Civil Procedure it has been observed by Chitaley that section gave a jurisdiction to a Judge to transfer a case suo motu even without notice which shows that question of notice cannot be a question of jurisdiction.
16. In Bhola Noath Chatterjee, AIR 1932 Calcutta 265, it was held that where on an application by a party the case is transferred without notice to the opposite party as required by section 24, such transfer is an irregularity if it does not prejudice the opposite party and is not sufficient for holding that the Court of transfer has no jurisdiction to dispose of the case.
17. The legal position came to be discussed in the case of Muhammad Farash Khan v. Mst. Nishadar Jan, reported in PLD 1983 SC(AJ&K) 43, and it was observed as under:-- "It is correct that section 24 of the Code of Civil Procedure stipulates a notice to the other party before transferring a case. The question, therefore, which falls for determination is whether this omission fatally affects the decision made by the sub-Judge, Rawalakot. No doubt a view prevailed/prevails with some of the superior Courts that the provisions as to notice is imperative and an order of transfer without notice is bad in law. But we are of the view that the want of notice is an irregularity which does not invalidate the transfer if it does not prejudice the opposite side. If the omission to serve notice prejudices the case of the opposite-party on merits the failure of notice, of course, may be fatal to the decision made but not otherwise. Therefore, section 24 of the Code of Civil Procedure, though requires notice to the opposite party when transfer of a case is intended on the application of a party yet failure to do so is merely an irregularity; when no prejudice is proved and transfer is made (as the case is before us) to suit the convenience of both the parties."
18. Keeping in view the facts and circumstances of the case we are in no doubt that the order of transferring the case front the file of learned Presiding Officer Labour Court No,V to Labour Court No,IV was absolutely correct as the bitterness which was created between the litigants and the Court was not germane to, the dispensation of justice. It appears apt at this point to restate that the justice should be even handed and transparent, so that it should glaringly appear to have been done.
19. It has to be kept in mind that the labour laws are constructed to be beneficial legislation.
Industrial Relations Ordinance, 1969 was promulgated, inter alia, for the purpose of regulation of relations between employers and workmen and avoidance and settlement of any difference or dispute arising between them. Labour Courts are established, inter alia, for the purpose of adjudicating and determining the industrial disputes. Under section 25-A of the I.R.O., 1969. a workman is entitled to invoke the jurisdiction of the Labour Court for adjudication and redressal of his grievances. The Legislature has provided mechanism of expeditious redressal of the grievances of workers. Subsection (4) of section 25-A of the Ordinance provides that when the matter relating to a worker's grievance is brought before the Labour Court it shall give a decision within seven days from the date of the matter being brought before it. Though this provisions is not mandatory in nature, yet it adequately establishes that the object behind such legislation was to ensure quick disposal of case relating to disputes between employers and workers. The I.R.O, 1969, is by no means a law meant to involve the workers in a prolonged and interminable litigation.
20. However, it has been noted with increasing unease that during the pendency of the proceedings before Labour Forums the matters challenging interlocutory orders are brought before this Court by invoking Constitutional jurisdiction. Impugning the interlocutory orders in Constitutional jurisdiction was bound to halt the progress of main case, increase the backlog, delay the disposal, frustrate the scheme of law, and subject the worker class to a protracted agony. This eventually tantamount to defeating justice.
21. It has been held that the Constitutional jurisdiction is invoked and made available in case of imminent, grave and tangible threats to valuable personal and property rights, subject inter alia to condition that legal remedy, if at all any available in the circumstances, is not efficacious or adequate. If every order like the one before us passed by the learned Tribunal is challenged by means of a writ petition it might not only amount to the abuse of the Constitutional jurisdiction but would also defeat the very purpose' for which the Ordinance was enacted.
22. In case of A.F. Ferguson & Co. v. The Sindh Labour Court and another PLD 1985 SC 429, their lordships of Hon'ble Supreme Court made the following observations:- "In our view, the Constitutional jurisdiction of the High. Court should not normally be exercised in cases where the entire case will not be completely disposed of. This Court and even the Privy Council, has not favoured piecemeal and fragmentary decisions of causes; see Abdul Rehman v Haji. Mir Ahmed Khan and another, Ibrahim v. Muhammad Hussain, and Nanhelal and another v.
Umrao Singh. In the circumstances of the present case the prayer for exercising Constitutional jurisdiction of the High Court should, therefore, have been declined."
23. Respectfully relying upon the above rule laid down by the Hon'ble apex Court, we are of the considered opinion that the preconditions for exercise of extraordinary powers of the High Court are not satisfied in the present case, as admittedly no prejudice, harm or injury has been caused to the petitioners.
24. On the strength of above discussion we have arrived at an unavoidable conclusion that the petition is misconceived and not maintainable. The same is accordingly dismissed in limine alongwith listed C.M.As. No,4557 of 2001 and 4558 of 2001.
25. These are the reasons for short order dated 29-10-2002.