1986 PLP 105 (PLC)

MUNAWAR ALI KHAN, J.‑‑The respondent No. 2, Muhammad Maroof is employee of the petitioners, National Cement Industries Ltd. having two units: one at Karachi and another at Dandot (District Jhelum). By order, dated 7‑3‑1985 the said respondent was transferred from Karachi to Dandot. Having failed to get any response to his representation lodged with the petitioners against his transfer, Muhammad Maroof approached National Industrial Relations Commission (for the sake of brevity called N.I.R.C.) by moving application under section 22‑A (8)(I), Industrial Relations Ordinance, 1969 (hereinafter called the Ordinance) read with regulation 32, National Industrial Relations Commission (Procedure and Functions) Regulations, 1973 (hereinafter referred to as the Regulations). While issuing notice to the petitioners, the N.I.R.C. made an interim order, dated 13‑3‑1985 whereby the operation of the transfer order of the aforesaid respondent was suspended and the petitioners were called upon to show cause why the said interim order should not be confirmed. It seems that N.I.R.C. after hearing the petitioners has already confirmed the interim order vide order, dated 30‑6‑1985. However, in the meantime the petitioners filed this petition seeking to challenge the ad interim order of the N.I.R.C. After hearing the arguments addressed at the bar the petition was dismissed by short order, dated 9‑7‑1985 for reasons to be recorded separately. Following are the reasons in support of the said order. The only point that was hotly contested was whether the N. I.R.C. possessed the requisite jurisdiction to pass the impugned order. If the answer was in the affirmative the order so passed could be right or wrong but it could not be held as void, gas having been passed without jurisdiction. In that event the proper forum to agitate the wrong order passed by Single Bench of the N.I.R.C., as in the instant case, is the Full Bench of the same Commission, vide section 22‑D of the Ordinance. No such appeal has however been filed by the petitioners. The thrust of the argument advanced by the petitioners counsel was that as the impugned order suffered from the jurisdictional defect, the petitioners were within their right to invoke the constitutional jurisdiction of this Court. His argument was based on the grounds: firstly that the petitioners were given no notice before passing of the impugned order secondly that subsequent to delivery of the transfer order to the respondent No.2, he was relieved of the charge and he approached the N.I.R.C. thereafter and thirdly that regulation 32 of the Regulation was not inviokable as there was no case of unfair labour practice. On careful perusal of the memo of the petition we find that it is nowhere mentioned that the N.I.R.C. had no jurisdiction to pass the impugned order. Despite such omission the learned counsel for the petitioners was allowed to submit his arguments on the point of jurisdiction. Coming to his first objection as regards non‑service of notice, it may be pointed out that not only notice was given to the petitioners but also they were heard before confirmation of the interim stay order. However, the petitioners themselves showed undue haste by rushing to the Court merely on passing of the ad interim stay Such order is invariably passed without giving notice to other party by the authority having jurisdiction, in the matter unless the law has imposed any express bar on exercise of such power. There is nothing to show that N.I.R.C. was not competent to make the ad interim order, which has been impugned in the petition. Therefore, it cannot be argued that the impugned order was without jurisdiction for the reason that no notice was given to the petitioners before passing of that order. As for the next objection of the learned counsel for the petitioners that the prohibitory order restraining the petitioners could not be passed by the N.I.R.C. as by the time of passing that order, the transfer order has been acted upon and in pursuance of that order the respondent No.2 had ever been relieved of his charge at Karachi. No doubt the transfer order was served on the said respondent but the endorsement made thereon clearly shows that he had received the order under protest. However in paras. 7 and 8 of his counter‑affidavit the respondent Muhammad Maroof has vehemently denied that he was relieved of the charge or that any handing over and taking over had taken B place. His stand is that he has been regularly attending to his duties after 7‑3‑1985 the date of the transfer order. He has further stated that he had even lodged strong representation with the petitioners against his transfer but without any result. No affidavit has been filed on behalf of the petitioners in rejoinder controverting the stand taken by the said respondent with regard to his continuing to attend to his duties in spite of the service of transfer order on him. Even otherwise the petitioners have not been able to establish by any evidence that the said respondent had actually been relieved of his charge before he moved the N.I.R.C. and got ad interim stay order in his favour. Therefore, even on that ground the impugned order cannot be held to be without jurisdiction. The last contention o: the learned counsel for the petitioners was that since the above respondent had no case of "unfair labour practice", the regulation 32 was not attracted the N.I.R.C. had no jurisdiction to pass the impugned order. As provided in regulation 32 the N.I.R.C. has power to intervene where an unfair labour practice has been committed or where a case of unfair Labour practice is likely to occur. According to the learned counsel for the respondent No‑2 the latter's case is covered by the clause (2) of regulation

32. In fact this contention is with regard to merits of the case. In other words whether the N.I.R.C. had sufficient materials before it to exercise its discretion to grant interim order. This has nothing to do with jurisdiction. Even then while submitting his arguments, the learned counsel for respondent No.2 has referred to the date of the said respondent's transfer order which has been issued only two days after his election as President of the Union of the Workers. This is not disputed by the petitioners' who have also admitted that the respondent Muhammad Maroof has been taking part in trade union activities since long. The learned counsel for the said respondent also pointed out the inconsistency in the petitioners stand as to the reason for transfer of the said respondent, indicating thereby that transfer was mala fide. In the transfer order the respondent is shown to have been transferred on account of being surplus whereas para. 5 of the memo of the petition shows that respondent No. 2 was sent in place of Ashraf Bodla who was brought to Karachi to look after the work of Admin. /Law Section as the said respondent was the only suitable hand in the Administration Department to replace the said Ashraf Bodla. According to the learned counsel for the respondent No. 2 neither of the two reasons given above for the said respondent's transfer had any truth in them. As for his being surplus, the learned counsel pointed out that the respondent No. 2 had joined the service of the petitioners about 30 years ago and during this long period of service he had become so senior that many people were junior to him and petitioners' assertion that the said respondent was rendered surplus was only a myth. As regards other reason that the said respondent was transferred as replacement of Ashraf Bodla, the learned counsel submitted that this too was false. He argued that had the said respondent been transferred in place of Ashraf Bodla, their transfer would have been made simultaneously by the same order but the admitted fact was that Ashraf Bodla was transferred to Karachi on 21‑7‑1984 whereas the respondent's transfer was ordered eight months later, on 7‑3‑1985. Therefore, the learned counsel contended that from all this material it can be very well visualized that by the intended transfer of the respondent No. 2, the petitioners wanted to uproot the said respondent from Karachi and thereby ruin his career. Thus, according to him it was clear case of unfair labour practice calling for interference of the N.I.R.C. The learned counsel for the petitioners cited following authorities in an attempt to show that the impugned order was without jurisdiction and hence void: (1) Saeed Ahmed Kazi v. Chairman, National Industrial Relations Commission and another 1984 P L C 1480. (2) Unreported case of National Bank of Pakistan (Constitutional Petition No. D‑344 of 1983), decided on 16‑4‑1985 (D.B. Karachi). We have examined these authorities and have found that the facts of these cases are distinguishable from those of the instant case and, therefore, they are not helpful to the petitioners. In the first case while entertaining application under section 32 of the Regulation, the N.I.R.C. had simultaneously entertained complaint under section 53 of the Ordinance; It was held that the C.B.A. could not take two inconsistent positions. Similarly in the second case of National Bank the aggrieved party had filed not only application under section 22‑A (8)(I) of the Ordinance read with rule 32(2)(c) of the Regulation but had also filed complaint under section 53(1‑A) read with section 15 of the Ordinance. Following the above‑reported case of Saeed Ahmed Kazi, it was held that two inconsistent positions could not be taken by the respondent. As against these facts, in the instant case the respondent No. 2 had made application only under section 22‑A (8)(I) of the Ordinance read with rule 32 of the Regulations. As such the aforesaid two authorities are not applicable in the instant case. In view of above discussion we are of the view that the N. I.R.C. had the requisite jurisdiction to entertain the application of the respondent No. 2 and the impugned order passed by the Commission C on such application was perfectly in order. No interference is called for by this Court in exercise of its Writ jurisdiction. Accordingly as pointed out above the petition was dismissed by short order. M.Y.H. Petition dismissed.