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Petition No. 159 of 1985, decided on 5th August, 1985.

‑‑‑S. 25‑A‑‑Pakistan Railways Manual, Vol. I, S.V. Note 3(ii)‑‑Grievance petition‑‑Railway employee transferred from M to S‑‑Employee taking plea that he having attained statutory age could not be transferred and should be stationed at place of his choice‑‑‑Power of transfer, held, was right of the administration and subject to control by law‑ Administration if exceeded limits, prescribed by law action could be taken against such Administration.

‑‑‑S. 25‑A‑‑Pakistan Railways Manual, Vol. I, S. V. Note 3(ii) Grievance petition‑‑Phrase "as far as possible",' meaning and scope‑‑Phrase "as far as possible" would mean that direction was not mandatory Such possibility, held, was to be determined by Administration‑‑‑ However, it was for AU‑ ministration to prove that possibility existed against petitioner‑‑Administration having failed to prove such circumstances as would justify its action, petitioner's version stood proved.

‑‑S. 25‑A‑‑Pakistan Railways Manual, Vol. I, S.V. Note 3(ii)‑‑Transfer of employee from place M to S‑‑Grievance petition‑‑Interim relief‑ ‑‑Balance of convenience being in favour of employee because he was settled at such employee was entitled to interim relief.

‑‑‑Ss 2(viii)(d) & 25‑A‑‑'Workman'‑‑Effect of notification under Ordinance XXIII of 1969‑‑Use of word 'and' after word 'agency' and before words 'who have been notified' in the Notification was quite significant‑‑Unless condition of being so notified was fulfilled mere notification would not oust employee from Labour Court.

‑‑‑S. 25‑A‑‑Grievance notice, receipt of‑‑Employer having denied receipt of notice, copy of such notice tendered to such employer, in Court, held, repelled employer's contention of non‑receipt of notice.

Javed Awan for Petitioner. Sh. Rahim Nawaz for Respondents.

This order shall dispose of an application for ad interim injunction, moved by Muhammad Yaqub Commercial Supervisor (Booking) Pakistan Railways, Multan, hereinafter to be called the petitioner, on 1‑6‑1985, alongwith an application under section 25‑A of the Industrial Relations Ordinance, 1969, praying that his transfer order, dated 2‑5‑1985 passed by the Divisional Superintendent and Divisional Personnel Officer, Pakistan Railways, Multan, hereinafter to be called the respondents, may be suspended till the decision of the main case.

2. The petitioner has been transferred from Multan to Sahiwal on 2‑5‑1985. The petitioner's contention briefly is that he has attained the age of 57 years. In accordance with section V, note 3, sub‑note (ii) of the Pakistan Railways Personnel Manual, Volume I he is to be given the station of his choice. The present place of his posting that is Multan is the station of his choice hence for that matter, the transfer order cannot be sustained. Accordingly it may be set aside under section 25‑A of the Industrial Relations Ordinance, 1969. Till the disposal of his case under section 25‑A of the Industrial Relations Ordinance, 1969 the operation of the said order may be suspended otherwise he will suffer an irreparable loss and inconvenience.

3. The respondents are not in agreement with him. According them the power to transfer is a prerogative of the administration such it cannot be set aside. Moreover, it has been passed quite according to law, therefore, it is beyond the approach of any action. The respondents also denied the service of the grievance notice.

4. In order to arrive at the conclusion I have gone through the record and heard the arguments. The petitioner has relied upon section V, note 3, sub‑note (ii) of the Pakistan Railways Manual, Volume I which runs as under:‑‑

"(ii) The employees who attain the age of 57 years (i.e. 3 years before they are due retirement) should not be transferred from their homes and should be stationed at the place of their choice as far as possible."

Its perusal clearly supports the petitioner's version.

5. The respondents have not shown me any law contrary to it. They call it the prerogative of the administration. Generally speaking the power to transfer is the right of the administration but not when it is controlled by any law. In the presence of law it is to be exercised in the light of that law. In the present case the administration has exceeded the limits consequently the action lies against them by all l means.

6. The respondents further say that the law quoted by the petitioner uses the words "as far as possible". The use of these words means that the direction is not mandatory. The possibility is to be determined by the administration. This version to the extent of interpretation is correct. However, it is the administration to prove that the possibility exists against the petitioner. In the present case, the respondents have not indicated those circumstances which justifies the petitioner presence at Sahiwal. On the other hand the facts shows that he is) simply concerned with booking which can be supervised by anyone.

7. The transfer shall amount to dislocation of the petitioner alongwith his children who are studying. The transfer process shall amount to a wastage of their time which cannot be compensated.

8. The balance of convenience is also in the petitioner's favour because he is settled here. On the other hand, the respondents can keep the persons already at Sahiwal without any inconvenience to them or they can send anyone else subject to his convenience.

9. During the course of arguments, the learned counsel for the respondents raised a new point. According to him, the petitioner is not a workman because he has been declared so under the special provision of clause (d), subsection (viii) of section 2 of the Industrial Relations Ordinance, 1969. I agree with him to the extent of the existence of the notification but I do not agree so far as its effect is concerned. For ready reference I reproduce the relevant provision as under:‑

"Special provision‑For the purpose of distinction from the category of 'workers' or 'workmen', officers and employees of a department of the Federal Government or a Provincial Government or local authority who belong to the superior, managerial, secretarial, directorial, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of 'employer'."

The use of word "and" after the words "agency staff" Wand before the words "who have been notified" is quite significant. It denotes that the persons should not only fall within the definition of superior agency but also has been notified as such. Unless the two conditions are fulfilled mere notification cannot oust him from the Labour Court. In this case it will be decided only after evidenced whether the petitioner falls within the definition of the employer or not. '

10. The respondents have also denied the service of the grievance notice. To meet this objection, the petitioner has tendered a copy; the grievance notice. It prima facie repels the respondents' contention.

11. For the above discussion the application succeeds which is as such hereby accepted. The respondents should not implement the petitioner's transfer order till the decision of the main case.

A.A.

Application granted.

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