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Constitutional Petition No. D‑978 of 1982,. decided on 15th November, 1983.

‑‑ S. 53 read with S. 15 and National Industrial Relations Commis sion (Procedure and Functions) Regulations, 1973, Reg. 32‑Unfair labour practice‑Complaint of Stay order Complaint under S. 53 can be filed against unfair labour practice already committed-Proceedings under Reg. 32 of National Industrial Relations Commis sion (Procedure and Functions) Regulations, 1973 can be started and injunction/stay order be sought against only a threatened unfair labour practice‑Workers transferred‑C. B. A. initiating proceedings under Reg. 32 ibid before National Industrial Relations Commission seeking stay of transfer orders and also filing complaint under S. 53 read with S. 15 of Industrial Relations Ordinance, 1969‑N. I. R. C. entertaining both and after issuance of notice to employer (petitioner) passing stay order against transfers already ordered‑Order of N.I.R.C. challenged in constitutional petition before High Court‑Held: Completed transfers cannot be stayed and C.B.A. could not take two inconsistent positions I.e. complaint under S. 53 and application under Reg. 32 ibid directed against same transfer order‑Stay order granted by N.I.R.C., in circumstances set aside by High Court and proceedings under Reg. 32 ibid pending before N.I.R.C. quashed without affecting complaint under S.53 Constitutional petition Provisional Constitution Order (I of 1981), Art. 9.

Mamoon Kazi for Petitioner.

Malik M. A. Saeed for Respondent No. 2.

Date of hearing: 15th November, 1983.

In this Constitution Petition the petitioners have challenged the order of stay issued by respondent No. 1 directing that the orders of transfer of Members of the respondent 2 mentioned specifically in the said order be temporarily suspended till the hearing of the case.

The petitioner had sought to transfer Nine of the employees of National Bank of Pakistan to different places in Sind. The respondent No. 2 considered the same to be an unfair labour practice as the persons who were ordered to be transferred were active unionists and active members of4espoodent No. 2 and it was alleged by respondent No. 2 that those persons were being punished for their union activities. The respondent No. 2 had sought intervention of respondent No. 1 by filing two proceedings. One was an action under Regulation 32 of N. I. R. C. Regulations seeking stay of the order of transfer and the other was a complaint under section 53 of I. R. O. of 1969 read with section 15 of the same Ordinance. The complaint under section 53 was duly entertained by the respondent No.1 and comments had been called from the petitioner. The application under Regulation‑32 was also entertained and notice was issued to the petitioners and thereafter the alleged order of restraint was passed.

The petitioner's counsel has relied upon a decision in petition No. ‑D‑1358/80, dated 1st October, 1980 and another decision of the present Bench made on 4th of October, 1983 in Constitution Petition No. D‑74/83 between the same parties.

We have taken the view in that petition that the employee or the collective bargaining agent cannot take up two in-consistent positions and if a complaint under section 53 of I.R.O., 1969 has been filed then it means that an unfair labour practice under section 15 of the I. R. O. of 1969 is already alleged to have been committed. And once that is done the employee or the C. B. A. cannot say that the employer was intending to commit an unfair labour practice. The same position seems to be applicable in this case. Mr. Saeed had tried to argue that since there were two separate proceedings in this case, therefore, it was not a case covered by the cited decisions. But we do not agree with his submission and we are still of the view that an employee or C. B. A. can file complaint under section 53 of the 1. R. O. complaining against the unfair labour practice which has already been committed. But they can make application under Regulation 32(1) of I. R. O. and seek an injunction o stay against only a threatened unfair labour practice.

It would have been a different matter if the respondent No. 2 had taken the position in their application under Regulation 32 that after having transferred the nine employees of National Bank of Pakistan, the petitioners were likely to make further transfers of the other members of respondent No. 2, and therefore, they wanted to seek injunction against those threatened transfers, then in that case the respondent No. 2 could have effectively and successfully distinguished the cited cases. But in the present case the complaint under section 53 as well as the application under Regulation 32 were directed against the same order and transfers in respect of the same persons and, therefore, two inconsistent positions could not be taken by the respondent No. 2. The completed transfers cannot be stayed.

In this view of the matter the impugned order of the respondent No.1 is hereby set aside and the proceedings under Regulation 32 pen din before the respondent No. 1 are hereby quashed. But we make it clear C that this order will not affect the complaint under section 53 filed by the respondent No. 2. This petition is, therefore, disposed of in the above terms.

A. E.

Orders accordingly.

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