1976 PLP 564 (PLC)

Date of hearing: 24th May 1976 . This is an appeal against an order dated 16-4-1976 of Punjab Labour Court No. 1, Lahore refusing to grant temporary injunction as prayed for.

2. National Engineering Service (Pakistan) Ltd., Lahore Employees' Union, appellant filed a petition under section 25-A of Industrial Relations Ordinance, 1969 against the Management of National Engineering Service (Pakistan) Ltd., Lahore claiming relief to the effect that the letter of transfer dated 30-3-1976 issued by the Management, whereby Mohammad Ashraf, General Secretary of the appellant-Union, had been transferred from Lahore to Karachi, be set aside. Alongwith the aforesaid petition the appellant Union also filed an application under Order XXXIX, rules 1 and 2 of C. P. C. praying that the operation of the transfer order in respect of Mohammad Ashraf, General Secretary, be suspended pending the decision of the main petition. Learned Labour Court rejected the application.

3. Aggrieved by the above interim order, the appellant has preferred this appeal.

4. First point for determination is as to whether the impugned order is appealable. In this connection it will be relevant to reproduce section 37 (3) of Industrial Relations Ordinance, 1969 which reads as follows:- "Any party aggrieved by an award under subsection (P L J 1973 Tr. C (Lab.) 155) or a decision given under section 25-A may prefer an appeal to Labour Appellate Tribunal within 30 days of the delivery thereof and the decision of the Tribunal in such appeal shall be final." Now the question arises is as to whether the impugned order is a decision given under section 25-A of the Ordinance. In the case, United Bank Labour Union v. Messrs United Bank Limited and another (1) it was held that an order granting interim injunction under Order XXXIX, rule 1, C. P. C. by Labour Court was not appealable as it did not determine Labour Dispute . In this case, Road Transport Corporation, Lahore v. Liaqat Ali and another (1970 P L C 266) it was held by the Industrial Appellate Tribunal West Pakistan that the order under section 151, C. P. C. was not an interim award so as to be appealable under section 16 of the West Pakistan Industrial Disputes Ordinance, 1968.

5. The learned counsel for the appellant, on the other hand, contended that the learned Labour Court had virtually decided the case even on merits and, therefore, it was in the nature of a decision, which is appealable. He relied on the judgment of the Sind & Baluchistan High Court in the case M. O. Basha v. Sind Labour Court No. 3, etc. (P L D 1975 Kar. 57) wherein it was obsrerved:- "The expression `a decision' is not qualified by any word of limitation to give to it restricted meaning as one on merits. It is well-accepted principle of interpretation that the word should be given its ordinary meaning unless the context so restricts. We, therefore, fail to see why the expression 'a decision' can only be construed to mean a decision on merits. In so restricting its meaning the Labour Court read something into the provision which its context did not permit, Therefore such a construction is erroneous. Besides, the application under section 25-A was dismissed. 1t was, therefore, an adjudica tion by the Junior Labour Court under section 56-B, which in our view would amount to a decision as it fin-ally disposed of the applica tion against which the petitioner could legitimately be said to have a legal grievance. In this view of the matter also, the appeal was competent." Now it is to be seen as to whether the impugned order virtually disposed of the chain petition on merits. In the main petition it was contended that the order of transfer of Muhammad Ashraf. General Secretary, from Lahore to Karachi was illegal inasmuch as the same violated the provisions of section 23-C and section 15 (d) of the Ordinance. The learned Labour Court in the impugned order gave a finding that section 23-C of the Ordinance had no application in this case. As regards the allegations pertaining to violation of the provisions of section 15 (d) are concerned, the learned Labour Court made the following observations:- "I have very carefully gone through the contents of the documents, annexed to the petition by the petitioner. I have also perused and analysed the documents annexed to the reply statement. As a result of such careful consideration and analysis I have come to the conclusion that transfer of Muhammad Ashraf from Lahore to Karachi has been ordered by the respondent in the exigencies of service of the respon dent. A Telex had been received by the respondent from the Vice-President of the company located at Karachi that the Karachi office urgently needed 50 additional personnel In order to strengthen its office at Karachi the respondent ordered the transfer of Muhammad Ashraf from Lahore to Karachi. It may be noticed that according to the application of Muhammad Ashraf for appointment and as per contents of the appointment letter the domicile of Muhammad Ashraf is recorded at Karachi and he is liable to be transferred any where in Pakistan or abroad while in the service of the company. This means that in fact Muhammad Ashraf is being transferred to place of his domicile and this cannot be considered as victimisation by any stretch of imagination. In the light of the above, we find that the order of transfer of Muhammad Ashraf from Lahore to Karachi is not tainted with malice and has not been made with a view to victimize for his Trade Union activities." From the above it is clear that the learned Labour Court had virtually decided the main petition rendering the same as infructuous. Relying on the judgment of the Sind & Baluchistan High Court I hold that the impugned order is appealable.

6. Now the next point for determination is as to whether the learned Labour Court had the authority to entertain the application under Order XXXIX, rules 1 and 2, C. P. C. In other words whether the learned Labour Court had power to grant temporary injunction if it so desired. In this connection there is the judgment of the Sind & Baluchistan High Court in the case Brooke Bond Pakistan Limited v. Second Sind Labour Court and another (1973 P L C 111), wherein it was held that subsection (2) of section 36 of the Ordinance did not confer upon Labour Court while, adjudicating and determining any industrial dispute, the power to pass an order under Order XXXIX, rules 1 and 2 of C. P. C.

7. With due respect I beg to differ from the above view, because if the Labour Court lacks jurisdiction of granting temporary injunction, strange results would follow in cases like the one in hand, which is that the Court may be able to grant in the end perpetual injunction but is helpless to grant the temporary injunction and let the wrong be done. This cannot be the intention of the Legislature that the Court, which can give parpetual injunction in any shape, should be incompetent to atop the wrong temporarily before delivering the final judgment. The Karachi Bench B in the case, Crescent Pak Soap & Oil Mills Labour Union v. Messrs Crescent, fortifies me in this view Pak Soap & Oil Mills and 2 others (1968 P L C 87).

8. In the main petition under section 25-A of the Ordinance the order of transfer of Muhammad Ashraf, General Secretary of the Union, from Lahore to Karachi was being challenged therefore, if temporary injunction restraining the Management from transferring Muhammad Ashraf from Lahore to Karachi is not granted till the final disposal of the main petition, the same would become infructuous.

9. In view of the above, the balance of convenience lies in granting tem porary injunction as prayed for. I, accordingly, accept the appeal, set saide the impugned order and direct that Muhammad Ashraf, General Secretary, be not transferred from Lahore to Karachi till the final decision of the main petition under section 25-A of the Ordinance.

10. The record should be sent back to Lahore Court for decision on the main petition.