1986 PLP 985 (PLC)

TANZIL‑UR‑REHMAN, J.‑‑This is a constitutional petition filed under Article 9 of the Provisional Constitution Order, 1981 which, for reasons to be recorded separately, was allowed by us just after the conclusion of the arguments, by a short order of this date. The said order reads as under:‑ "Upon hearing Mr. Mamoon Kazi, we grant this petition and hold that the order of respondent No.l, dated 29‑3‑1983 keeping in abeyance an order of the petitioner transferring the respondent No. 2 from Hyderabad to Mirpurkhas is of no legal authority and void. For the reasons to be recorded separately the petition is allowed to that extent but there shall be no order as to costs."

2. The facts leading to this petition are that the petitioners are a Banking Company. Its ownership, management and control vest in the Federal Government under the Banks Nationalisation Act, 1974. Respondent No.2 was originally working as Assistant‑cum‑Typist at the petitioners' zonal office at Hyderabad when he proceeded on leave on medical ground with effect from 27‑7‑1982. In the meanwhile, a new "Mirpurkhas Zone" was created by bifurcating the original Hyderabad Zone into two, and consequently the employees working at the Hyderabad Zone were split into two groups, one such group being placed at the disposal or Mirpurkhas Zone. On 29‑1‑1983 when the respondent No.2 resumed his duty, after expiry of his leave, his services were placed at the disposal of Mirpurkhas Zone, as the said Zone was to start functioning with effect from lat. February, 1983. Respondent No.2, being aggrieved with the said order of transfer filed a complaint dated 1‑3‑1983 under Section 53 (1‑A) read with Section 15 of the Industrial Relations Ordinance, 1969 before the National Industrial Relations Commission, respondent No.l. He also filed an application under Section 22‑A (8) (g) of the Industrial Relations Ordinance, 1969 read with Regulation No.32 (2) (c) of the N.I.R.C. (Procedure a Function) Regulations 1973. These applications were registered as case No.24 (59)/83. Respondent No.l while considering application under Section 22‑A (8) (g) of Industrial Relations Ordinance, 1969, read with Regulation 32 (2) of the National Industrial Relations Commission (Procedure t Function) Regulations 1973, passed an interim prohibitory order 29‑3‑1983, directing the petitioner to keep in abeyance the impugned order transferring respondent No.2 from Zonal Office Hyderabad to Mirpurkhas Branch of the petitioner's bank till further orders. The petitioner then filed this petition against the said order which is still in force.

3. Mr. Mamoon Kazi, learned counsel for the petitioners contended that the impugned order passed by respondent No.l is wholly without jurisdiction. In support of his contention he placed his reliance on two decisions of this Court passed by another Division Bench, reported as Saeed Ahmed Kazi and other v. National Industrial Relations Commission and another 1984 P L C 397 passed in Constitutional Petition No.D‑?1 of 1983 and Saeed Ahmad Kazi v. Chairman, Industrial Relations Commission and another 1984 P L C 1481 passed in Constitutional Petition No. D‑978 of 1982.

4. In the second named case reliance was also placed on an unreported decision of another Division Bench of this Court in C.1'. No.D‑1358/1980, dated lat October, 1980.

5. We have gone through the aforesaid judgments. It is noticed that the facts and the circumstances in the above said cases are similar to the case before us, and the point of law is also the same. We have therefore, no reason to take a different view.

6. In the present case, the complaint under section 53 as well as application under Regulation 32 were directed against the same order of transfer in respect of the same person (Respondent No.2) and, therefore, two consistent positions could not be taken by him (respondent No.2). Since the order of transfer was complete and final and there was no question of any threat of intended transfer, the order of respondent No.1 is declared as passed without lawful authority and of no legal effect and the same is hereby quashed.

7. We would, however, like to make it clear that the complaint of respondent No‑2 under Section 53, as aforesaid, may be proceeded I with by respondent No.l, in accordance with law. A. A.??????????????????????????????????????????????????????????????????????????????????????????????????? Order accordingly.