SANAULLAH JAHANGIR SHEIKH Versus VICE-PRESIDENT, ZONAL OFFICE, UNITED BANK LTD., SIALKOT

This is a revision reporting that the order dated 6‑12‑1987 recorded by the learned Presiding Officer, Punjab Labour Court No.7, Gujranwala dismissing the application for interim stay is wrong and improper.

2. The petitioner is grade‑III officer and he has been transferred from Sialkot to Zafarwal, a place situated at about 40 miles from Sialkot. The distance has been given as alleged by the petitioner. The petitioner has, challenged the transfer order in his grievance petition pleading mala fide. The ground is that his cases are pending against the management, therefore, with mala fide intention he has been transferred. However, this is an admitted fact that the petitioner has been transferred after his continuous stay for three years at Sialkot.

3. It has been argued by the learned counsel for the; petitioner that initially‑ the ad interim stay was issued by learned Punjab Labour Court No.l, Lahore since at that time there was no Presiding Officer in Punjab Labour Court No.7, Gujranwala and the learned Presiding Officer after resuming charge, called for the file from learned Labour Court No.l on several dates but it was not received and without looking into the file he dismissed the application for ad interim stay, therefore, the order is not maintainable. He has also argued that once the learned lower Court had passed an order that the stay petition would be disposed of after receipt of record, it could not change its previous order and decided the petition in the absence of the record. Outwardly there may appear some force in the argument of the learned counsel but the record consisted of only the grievance petition and copy of the grievance notice. Since the file had not been received, even the respondent had not filed reply to the main petition end to the application for stay. The learned lower Court has in the impugned order said that it had perused the documents shown to it. It is thus clear that although the file was not before the learned lower Court yet it perused the grievance petition. Even if the record had been summoned, the grievance petition and the copy of the grievance notice only would have been perused by the learned lower Court. Since the petitioner remained posted for a continuous period of three years before he was transferred, prima facie the order of transfer was passed in routine and not with any mala fide intention. If the period of stay of the petitioner at Sialkot had been for an inadequate period, of course, it could be said that in this respect he had an arguable case. The other thing, which justifies the impugned order, is that at present there is absolutely no proof of service of grievance notice. The case of the petitioner is that he had delivered the grievance notice by hand but it was thrown at his face. There is no affidavit of the petitioner or the affidavit of any person in whose presence the petitioner .may have delivered the grievance notice and it had been returned to him. If the grievance notice had been sent by registered post and the postal receipt had been brought on the record, it could be said that the petitioner had an arguable case. Needless to say that the provision of service of grievance notice prior to the bringing of grievance petition is mandatory and in cases where it does not appear that a valid grievance notice was served, the very grievance petition it not entertainable and the Labour Courts have no jurisdiction to grant relief in such cases. Needless to say that before getting a stay order a party has to show that it has an arguable or prima facie case, that the balance of convenience goes in his favour and that he is likely to suffer from irreparable loss by the refusal of stay order. As mentioned above, it cannot be said at this stage that‑the petitioner has a prima facie case. No doubt, the petitioner may feel some degree of inconvenience by moving to the place of his new posting but the inconvenience which will be faced by the employer will be greater than the inconvenience to which the petitioner has been put. All the orders passed in connection with the transfer of the petitioner shall have to be kept in abeyance if the stay prayed for is granted, whereas on the contrary if the children of the petitioner are studying at Sialkot, as stated by him during his arguments, he may request the employer to postpone the implementation of the order of transfer or to allow him to occupy the accommodation provided to him. If he has taken a house on rent, he may request the respondent to continue to pay the rent to him. It has been argued that no conveyance allowance is allowed in small cities like Zafarwal. Even if it is so, if ultimately the petitioner succeeds in his grievance petition, he can claim conveyance allowance and any other allowances which he on account of the transfer will not be able to get and thus the loss which may be suffered by the petitioner by the refusal of stay order can be' calculated in terms of money and thus does not amount to irreparable injury. The impugned order thus appears to be justified and no question of exereising suo motu revisional powers arises.

4. As a result, the revision fails and is dismissed in limine.

K. E. /479/Lb.P Revision dismissed.