Malik MUHAMMAD ANWAR Versus GENERAL MANAGER, PERSONNEL, PAKISTAN RAILWAYS

ORDER

This order will dispose of an application under Order 39 Rules 1 and 2, C.P.C. which has arisen in the following circumstances.

2. Malik Muhammad Anwar, petitioner was working as Sanitary Inspector at Faisalabad. By an order dated 19‑3‑1987 he was transferred and posted in the same capacity at Moghalpura vice Mr. Muhammad Iqbal respondent No.3 who was transferred in the same capacity at Lahore Railway Station in shift III. This order was implemented because the petitioner reported for duty and took over charge on 24‑3‑1987. The General Manager (P) by an order dated 5‑4‑1987 cancelled the transfer of Muhammad Iqbal and instead of him, directed Malik Muhammad Anwar to be posted at Railway Station, Lahore. In compliance of this order, the Divisional Medical Officer issued an order dated 6‑4‑1987 by which he relieved the petitioner so as to resume duty at Railway Station, Lahore. The petitioner felt aggrieved and challenged the correctness of the order inter alia on the ground that he could not be transferred from Moghalpura without having completed his normal period of three years. His transfer to Lahore Railway Station was an act of unfair Labour practice on the part of the employer because he is an active trade union leader. He has prayed that the order of his transfer to Lahore Railway Station should be declared as illegal and pending disposal of the petition, operation of the order dated 5‑4‑1987 passed by the General Manager (Personnel) may be suspended.

3. The petition has been opposed. It is alleged that Labour Court No.2; Lahore has no territorial jurisdiction and that the petitioner is not a workman. On merits of the case, it is maintained that the petitioner filed a similar petition in Labour Court No.l and also in the N.I.R.C. His present petition is hit by the principle of res judicata. It is further alleged that the petitioner's transfer from Faisalabad to Lahore was made in the exigency of service and was not connected with his trade union activities. He is not entitled to any temporary relief. His petition should be dismissed.

4. I have heard the learned counsel for the parties at length. The question of jurisdiction and status of the petitioner as a workman and that the present proceedings are hit by the principle of res judicata cannot be determined summarily in these proceedings. These objections need evidence and will be adverted to while considering the case on merits. Presently, we have to see if the petitioner has an arguable case.

5. The petitioner was transferred from Faisalabad to Lahore by order dated 19‑3‑1987. This order was implemented. The petitioner prepared an inventory list of different articles lying in the Store which were handed to him by his predecessor Mr. Muhammad Iqbal. A copy of letter informing Divisional Medical Officer about this fact is at Annexure B. This leaves no doubt in my mind that the order of transfer was implemented and the petitioner had relieved Mr. Muhammad Iqbal, respondent No.3.

6. The impugned order was passed by General Manager (Personnel) on 5‑4‑1987. Its relevant portion reads as under:‑

"Transfer orders of Muhammad Iqbal, Sanitary Inspector Mughalpura under P.R. Workshops to Lahore Station are hereby cancelled. "

This order appears to have been passed under ads‑conception of true state of affairs existing on 5‑4‑1987. On that Mr. Muhammad Iqbal was no more Sanitary Inspector Mughalpura. Besides, the order which has been implemented, cannot be cancelled. If at all, Mr. Muhammad lqbal, respondent No.3, had to be favoured with posting at Mughalpura in spite of the fact that he had already completed three years, a fresh transfer order should have been passed. On the face of it, the cancellation of an order which had been implemented has no blessing of law and it makes the case of the petitioner arguable.

7. The petitioner has already taken over at Mughalpura. After having been shifted from Faisalabad in case he is again rooted from his present station of posting he will be put to inconvenience. Ordinarily, a railway servant has a right to remain posted at a station for three years. The employer has a right under public convenience to shift him earlier but not in the routine manner. Where a person feels that he has been transferred not in the public interest but on extraneous consideration he suffers mental agony which is an irreparable loss.

8. In view of what has been said above, I accept this application and grant the temporary injunction as prayed for i.e., the operation of transfer order dated 5‑4‑1987 shall remain suspended till the disposal of the main petition.

A. E. /491/Lb.P Stay granted.