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Miscellaneous Application in Appeal No. KAR‑206 of 1983, decided on 1st March, 1984.

‑‑S. 37‑Workman challenging order of his transfer on grounds of mala fide‑Petition dismissed by Labour Court‑Order of Labour Court appealed against ‑ During pendency of appeal workman charge‑sheeted for non‑compliance of transfer order and dismissed from service‑‑Dismissal order challenged in grievance petition before Labour Court‑Contention that with issuance of dismissal order transfer order existed no more and as such appeal before Tribunal had become infructuous‑Contention rejected‑Held: impugned order of transfer which was subject -matter of appeal if declared illegal being mala fide basis of dismissal from service would be knocked out hence appeal was very much alive.

The brief facts are that the appellant was employed with the respondent establishment. He was served with an order of transfer. He challenged the order as illegal being mala fide. He served a grievance notice on the respondent establishment and ultimately filed an applica tion under section 25‑A. I. R. O., 1969, before the learned Labour Court No. V at Karachi. Alongwith the application he also filed a Stay application, which was dismissed. The learned Labour Court ultimately also dismissed the application under section 25‑A, I. R. O., 1969, as not maintainable. Aggrieved by the order, the appellant came in appeal in this Tribunal. During the pendency of the application under section 25‑A, I. R. O., 1969, and this appeal the appellant was charge‑sheeted for not having complied with the order of transfer and was dismissed from service. He served a grievance notice on the establishment challeng ing the order of dismissal as illegal and mala fide. Ultimately he is said to have filed an application under section 25‑A, 1. R. O., 1969, against that order before the learned Labour Court.

2. Now an application has been filed on behalf of the respondent establishment that this appeal against an order, dated 4th June, 1983, of the learned Labour Court dismissing the application as not maintain able has become infructuous by a final order of dismissel passed against the appellant.

3. I have heard the learned counsel appearing on behalf of the parties, Mr. Muhammad Humayoon on behalf of the applicant/respond ent and Mr. Junaid Farooqi on behalf of the appellant workman. Mr. Humayoon has contended that in view of the final order of dismissal of the appellant from service, the order of his transfer no more exists and this appeal against that order, therefore, has become infructuous. Mr. Junaid Farooqi on behalf of the appellant worker has resisted the application and has contended that since the appellant was charge‑sheeted and dismissed on the sole ground that he had disobeyed the lawful orders of transfer and since the legality or otherwise of those very orders of transfer are sub judice in this appeal, the appeal does not become infructuous. He has further contended that in case the order of the transfer of the appellant has been found by this Tribunal in this appeal as illegal being mala fide, the order, dated 4th June, 1983 passed by the learned Labour Court, impugned in this appeal very likely may be reversed. He has, therefore, contended that in that view of the matter this appeal at this stage cannot be considered to have been infructuous as in case the order of transfer of the appellant is declared illegal being mala fide the very basis of his order of dismissal would be knocked‑out and, therefore, this appeal is very much alive. I find much substance in the contention raised on behalf of the appellant's learned counsel in the circumstances of the present case.

4. Accordingly the application filed on behalf of the respondent establishment is dismissed.

A.E

Application dismissed.

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