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Application No. Suk‑217 of 1981, decided or Std June, 1981.

Industrial dispute‑

‑‑Transfer‑Employer has a right to transfer workman in interest of efficiency of business or work unless not contrary to law or cons titutes unfair labour practice‑Workman according to conditions of employment liable to transfer at any of the projects or branches of employer Company‑Challenging transfer order on grounds of mala fide‑No particle of evidence to support allegation, except bare allegation‑Several other workers also transferred and joined new station of posting without objection‑Temporary stay order issued by Labour Court restraining Company from implementing transfer order, in circumstances, held, not proper or legally sustainable by Labour Appellate Tribunal in exercise of suo moto revisional powers Revision Temporary injunction‑Industrial Relations Ordinance (XXIII of 1969), Ss. 25‑A and 38 (3‑a) read with Civil Procedure Code (V of 1908), O. XXXIX, rr. 1 & 2.

Karachi Petroleum Workers Union v. Burmah‑Shell and others 1961 PLC 317; Pakistan Petroleum Worker's Federation v. Burmah‑Shell Oil Storage & Distributing Company of Pakistan 1961 PLC 1169; Bareilly Electricity Supply Co. Ltd. v. Sirajuddin and another 1961 P L C 449 and Brooke Bond Limited v. Sind Labour Court P L D 1973 Kar, 189 re/. Nizamuddin Baloch for Applicant. Date of hearing : 3rd June, 1981:

The record and proceedings of grievance petition No. 14 of 1981, Irshad Ali v. Pakistan Agricultural storages and Services Corporation Ltd., pending before the learned Seventh Labour Court at Sukkur has been called for, in exercise of suo motu powers of revision of this Tribunal under subsection (3a) of section 38, I. R. O., for examining the legality, propriety and correctness of the order of the learned Seventh Labour Court, passed on 19th March, 1981, granting a temporary injunction restraining the Pakistan Agricultural Storages and Services Corporation Ltd., to which I will refer as the company, from implementing the orders for the transfer of their employee, Irshad Ali, from Larkana to Quetta.

2. Respondent Irshad was employed as Sub‑Accountant in the company. By an order, dated 11th November, 1980, he and three others employees of the company were transferred from Mehran Rice Mills, Bakrani, to Larkana. Subsequently, by an order, dated 29th November. 1980, Irshad and seven other employees of the Company were transferred to Quetta. Irshad Ali challenged the orders of his transfer by way of a grievance petition under section 25‑A, I. R. O., before the learned Seventh Labour Court at Sukkur. With this objection be also filed an application under Order XXXIX, rules 1 and 2, C. P. C., for temporary injunction, pendenti prohibiting the company from implementing the orders of his transfer to Quetta. In this application Irshad Ali contended that the orders of his transfer were mala fide. In the affidavit filed by him in support of his application he stated that his transfer was due to his having filed a complaint against Mr. Mehfooz Illahi, Purchase Officer. It may also be pointed out at this stage that before coming to the Labour Court, Irshad Ali had filed proceedings in the Civil Court challenging they orders of his transfer but he was non‑successful in these proceedings his appeal to the District Judge was also filed. In the affidavit filed by the company in support of their objections to the grant of injunction, it was strenuously denied on behalf of the company that he transfer of Irshad Ali was motivated by rnala fide and it was corroded that the transfer was in the normal course. It was further stated in the affidavit that other employees who had been transferred with Irshad Ali had joined their duties at Quetta. The learned Labour Court, however, was apparently impressed with the contention of Irshad Ali and without examining the objection of the Company granted the interim injunction prayed for by Irshad Ali.

3. I have heard Mr. Nizamuddin Baloch, Advocate, who appeared for the company. Respondent, Irshad Ali has remained absent though duly served.

4. It is settled law that an employer has a right, in the interest of efficiency of his business or work, to transfer an employee from one place to another unless the transfer is contrary to the provision of any laws or constitutes unfair labour practice under section 15, 1. R. O. In the case of Karachi Petroleum Workers Union v. Burmah‑Shell and others (1961 P L Q 317), it was observed by the Industrial Tribunal, Karachi, that it, was a "well recognised principle that the power of transfer is inherent in the manage ment and even some time necessary according to the exigencies of the business." In the case of Superintending Engineer, Electricity Wapda v. Pakistan Hydro Electric Central Labour Union, decided on 13th April, 1981, this Tribunal while setting aside the order of the learned Labour Court countermanding the order of transfers of certain employees of the WAPDA had occasioned to observe that not only the transfer of workers but even of office‑bearers of a union is permissible provided that such transfer is not in violation of clause (d) of section 15. In the case of Pakistan Petroleum Worker's Federation v. Burmah‑Shell Oil Storage & Distributing Company of Pakistan (1961 P I. C, 1169), the Supreme Court not only considered the award by the Industrial Tribunal of joining time of seven days to employees under orders of transfer, but further took the view that on transfer from a Clerk to Lahore by the employer the Clerk was not entitled to any joining time as it was a condition of his employ ment. Since it appears to be a condition of employment of respondent Irshad Ali to serve the company at any of its projects or branches, it was well within the right of the company to transfer Irshad Ali to Quetta.

5. No doubt a mala fide action is unlawful action and, therefore, can beset aside, but apart from the bare word of respondent, Irshad Ali, there is not a particle of evidence in support of his allegation that. his transfer to Quetta is mala fide. In fact, as already pointed out, respondent Irshad Ali was not alone transferred to Quetta but was transferred along with seven other employees of the company. The Supreme Court of India in the case of Bareilly Electricity Supply Co. Ltd. v. Sirajuddin and another (1961 P L C 449), cautioned the Industrial Tribunal against lightly reaching findings of mala file and observed as follows:---

"It is hardly necessary to emphasise that the findings of mala fides can be made by Industrial Tribunals only after sufficient reliable evidence is led in support of it. Such a finding should not be made light‑beartedly or in a casual manner as has been done by the Tribunal in the present case."

6. Lastly I would like to refer to the decision of a Division Bench of the Karachi High Court reported as Brooke Bond Limited v. Sind Labour Court (1), on the extent of the powers of the Labour Court under subsec tion (2) of section 36, I. R. O. Tufail Ali A. Rehman; C. J., who delivered the judgment on behalf of the Division Bench, observed in this behalf as follows:‑

"I am, therefore, of the view that subsection (2) does not confer upon a Labour Court, while adjudicating and determining an industrial dispute, all the powers of a civil Court under the Civil Procedure Code but only such of them as may be described as procedural, i,e., such as are required for the purpose" of adjudi cation and determination. Now, it is clearly not necessary in order to be able to adjudicate or determine a dispute, that pending the adjudication or determination, a party be restrained from giving effect to the kind of the. order of which respondent No. 2 complained to the Labour Court."

7. For the reasons discussed by me above I am of, the view that the order of the learned Labour Court restraining the company from implementing the order of transfer in respect of respondent Irshad Ali is not proper or legally sustainable. I would, accordingly, set aside not proper or legs the same.

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