1. ' JUSTICE (RETD.) TANVIR AHMAD KHAN (CHAIRMAN).--This appeal under section 52 of I.R.O., 2002 is directed against the order dated 10th of September, 2004 whereby the learned Member dismissed the interim stay application filed under Regulation 32(2) of NIRC (Procedure and Functions), Regulations, 1973 in a grievance petition filed under section 49(4)(e) read with section 63 of the I.R.O.
2. 2002.
3. ' Facts briefly as reflected from the documents appended with this appeal are that the appellant joined respondent establishment as a Helper on 31-12-1976 in BPS-3. During his service he actively participated in the union activities. He got his promotion and became LS-1 w.e.f, 20th of May, 1987 in BPS-12.
4. Thereafter according to the appellant he secured Selection Grade in BPS-16 on 15th of April, 1989.
5. Again on 1st December, 1997 he was given move over in BPS-17. Throughout this period as already stated he actively participated in the activities of the union. A referendum in the establishment of WAPDA to determine the CBA was held on 3-6-2004 and the petitioner union namely Pakistan WAPDA Hydro Electric Central Labour Union was victorious. He was not only Provincial Secretary General of his union but was also Central Senior Vice-President as well.
6. ' The appellant was promoted as Junior Engineer in BPS-17 whereafter an order was passed on 26th of June, 2004 restraining him to participate in the activities of the union as he was no more a workman. Said order is in the following terms:- "Mr. Muhammad Ramzan Achakzai, L.S-I Provincial Secretary General Central Senior Vice-President PWHECLU (XCBA) has been promoted as Jr. Engineer (BPS-17) and he ceased to be the office- bearer of the CBA Union as he has become employer under I.R.O., 2002. As such Mr. Muhammad Ramzan Achakzai, Junior Engineer is not to be entertained as office-bearer of the CBA Union".
7. ' The appellant filed a petition under section 49(4)(e) of the I.R.O., 2002 taking exception to the afore-mentioned order dated 26-6-2004 on the ground that the same has been passed as an act of unfair labour practice simply to keep away the appellant from his union activities. Along with the main petition the appellant also filed an application under Regulation 32(2) of NIRC (Procedure and Functions) Regulations, 1973 for interim relief.
8. ' A learned Member through impugned order dated 10th of September, 2004 declined to grant interim relief as according to him the appellant failed to substantiate the prerequisite/pre- conditions for the grant of relief in his petition. Hence this petition.
9. ' Learned counsel has argued that the requirement of three preconditions i.e, prima facie case, irreparable loss and balance of convenience as enunciated by the Courts under Order XXXIX of C.P.C. Is not attracted in the present case as the said provision is not applicable. Another argument has been advanced that the appellant since 1997 was having BPS-17 and his promotion to the post of Junior Engineer has not materially affected his duties as such he could not have been deprived of the status of worker. The nature of work performed by him does not bring his case within the ambit of definition of employer as his duties are neither managerial nor administrative in nature.
10. We have considered the contention raised by the learned counsel appearing for the appellant and have also gone through the documents appended with the appeal. The argument that the provisions of Order XXXIX of C.P.C. Are not attracted/available to the Commission while deciding an application for interim relief is devoid of any force, section 45 subsection (2) provides as under:-- "A Labour Court shall, for the purpose of adjudicating and determining any industrial dispute, be deemed to be a Civil Court and shall have the same powers as are vested in such Court under the Code of Civil Procedure, 1908 (Act V of 1908), including the powers of
(a) enforcing the attendance of any person and examining him on oath;
(b) compelling the production of documents and material objects; and
(c) issuing commissions for the examination of witnesses or documents.
11. ' The reading of this provision demonstrates that the Commission has been invested with all the powers which a Civil Court enjoys under C.P.C. Further after stating so, power of enforcing the attendance of any person and examining him on oath, compelling the production of document and issuing of commission for the examination of witnesses and documents have also been included in the section. The term "include" has not been used in a conjunctive sense. It simply indicates that whatever has succeeded the word include is not exhaustive, it is simply enumerative.
12. Its purpose is to expand the scope of the provision so as to included otherallied matters. It is used to enlarge the meaning of words and phrases. In short whatever is mentioned succeeding the word include in only enumerative and not exhaustive. The use of word 'include' as already stated certainly enlarges the scope of the provision. In any case it does not restrict or curtail the application of the provision.
13. ' Section 36(2) of the repealed Ordinance, 1969 which was identical to the aforementioned section 45(2) of the I.R.O., 2002 came for interpretation before a Division Bench of Sindh High Court in a case reported in 1982 PLC 148 M/s. Merck Sharp and Dohme of Pakistan Limited v. Sindh Labour Appellate Tribunal and two others. The learned Division Bench held as under: " In our view, section 36(2) of the I.R.O. Was not enacted with the object to curtail the powers of the Labour Court or of the Labour Appellate Tribunal but it is an enabling provision conferring additional power in addition to the powers contained in the I.R.O., since in the I.R.O. No provision was provided for summoning witnesses etc. The above section 36(2) provided that a Labour Court shall be deemed to be a Civil Court and shall have the same powers as are vested in such Courts under the Civil Procedure Code, including the power of enforcing the attendance of any person and examining him on oath or compelling the production of the documents and material object and issuing of commission for the examination of witnesses or documents. The jurisdiction of a Labour Court or an Appellate Court is referable to section 25-A of I.R.O., which provision is wide in its scope unfettered with technicalities as to the mode of trial. It may again be mentioned that the Supreme Court of Pakistan while construing the above provision in the aforesaid case reported in PLD 1978 SC 207, has pointed out that the above provision is of the wide import, which inter alia empowers a Labour Court to examine the record of the Enquiry and to decide independently whether the impugned action was justified and warranted by law."
14. ' Mr. Rashid Ahmad Rizvi, a learned Judge of the Karachi High Court as he then was exhaustively thrashed out the question of applicability of C.P.C. To the proceedings under the I.R.O. In a case reported in 2000 PLC 14 Philips Electrical Industries of Pakistan Limited v. The 2nd Sindh Labour Court, Karachi through Presiding Officer and 53 others. It would be appropriate to reproduce the conclusion of the learned Judge after exhaustive discussion of the law and precedent.
15. "As a result of the above discussion, it could safely be held thata Labour Court which has been authorized to pass a final order in a nature of restoring the services of an applicant with all back- benefits, is equally competent to pass an interim order in special and peculiar circumstances prohibiting the opponent from passing any illegal order and restraining and unauthorized act pending disposal of the matter before it. But, it should not pass such order as a routine matter. It should be an exception and only in those cases where all the three ingredients for grant of an interim injunction are made out, namely existence of prime facie case, strong likelihood for suffering irreparable loss and injury, lastly, the question of balance of convenience. Whenever such interim orders are passed, it would incumbent upon the Court to proceed expeditiously with the matter and to dispose of the same as early as possible."
16. ' It is pertinent to mention over here that identical words are used in section 5 subsection(2) of the Punjab Service Tribunal Act, 1973. Said provision came under discussion before the Hon'able Supreme Court of Pakistan in a case reported in 1996 SCM R 645 Syed Imran Raza Zaidi, Superintending Engineer Public Health Engineering Circle-I, Gujranwala v. Government of the Punjab, through Services General Administration and Information Department, Lahore and others. It was argued that the Punjab Service Tribunal did not have the power to grant interim relief and the provision of Order XXXIX rules 1&2 of C.P.C. Would not be attracted. The learned Judge repelled the contention and held that the provision of Order XXXIX rules 1&2 of C.P.C. Are attracted. They further held that the power to grant interim relief is implicit in the power to grant main relief being incidental and ancillary. It would be appropriate to reproduce the determination of the learned Judges of the Hon'able Supreme Court of Pakistan in the following terms:-- "Under subsection (2) of section 5, Service Tribunal is deemed to be a Civil Court having all the powers which are vested in the Civil Court under C.P.C. Such powers would include the jurisdiction of the Civil Court under Order XXXIX, rules 1 & 2 C.P.C. To grant temporary injunction and that of the appellate Court under Order XLI, rule 5 C.P.C. To stay the execution/operation of the decree/order appealed from. These provisions can well be invoked by the Service Tribunal for the purpose of granting temporary injunction/interim relief pending the final disposal of the appeal. Apart from this, law is fairly well-settled that even in the absence of an express provision for the grant of interim relief, the appellate Court/Tribunal having the power to grant the main relief can also grant the interim relief by suspending wholly or reasonably incidental or ancillaryto the main appellate jurisdiction. Refer Sindh Employees Social Security Institution and another v. Adamje Cotton Mills Limited (PLD 1975 SC 32). Needless to observe that under section 5(1) afore-referred, the Service Tribunal on an appeal filed before it can set aside, vary or modify the order appealed against, of course, after full and final hearing of the appeal. That being so, the Tribunal can very well grant the interim relief during the pendency of the appeal on the basis of afore-mentioned principle. Thus, viewed from whatever angle, the Service Tribunal has the power to grant interim relief/temporary injunction during the pendency of the appeal".
17. This argument of the learned counsel that the provision of Order XXXIX C.P.C. Would not be attracted can be answered/dealt with on another score. The appellant himself claimed the interim relief which by no stretch of imagination can be granted in routine simply at his asking. Certain principles have to be kept in mind to grant or refuse the relief claimed. It has to be determined before embarking upon this exercise whether the person claiming relief has got an arguable case.
18. If it is so then further it is to seen whether grant of interim relief would result in more loss to the other side which cannot be subsequently compensated. The Court/Commission has to see the overall effect/consequence of the exercise of this power. The superior Courts evolved these three principles under Order XXXIX C.P.C. Meticulously so as to exercise this interim power in order to foster the cause of justice. These three principles i.e prima facie case, balance of convenience and irreparable loss have now become prerequisite/preconditions for her grant of interim relief. The Courts would not grant relief even if there is a prima facie case and other requisites are lacking.
19. Even if the provisions of Order XXXIX C.P.C. Is not applicable, even then the principle, here cannot be any other balanced criteria for the exercise of this power. The other ground that he was having BPS-1,7 since 1997 and the present promotion to the post of Junior Engineer in the same grade would not change the scenario is totally without force. It is to be stated that firstly earlier the appellant while performing the duties of LS-1 in Selection Grade-16 was given move over in BPS-17.
20. His nature of duties remained the same as he performed the duties of LS-1. He was simply enjoying BPS-17 as a move over. Now he has been substantively given BPS-17 and has been promoted as Junior Engineer. This present substantive grade in BPS-17 cannot be equated while he was having the same as move over. As already stated with his promotion to Junior Engineer his nature of duties has also changed.
21. ' So far as the merit of the case is concerned, the promotion of the appellant to the post of SDO/Junior Engineer is not denied. It is also admitted before us that both the posts are inter- changeable as they are having less same nature of posts. It is also reflected from a document appended with this appeal that the Junior Engineer/SDO has got authority to take disciplinary action against lineman G-II, Assistant Lineman, Meter Reader and Bill Distributor. It would be appropriate to reproduce the determination of the learned Single Member in this regard which is in the following terms:-- "According to chart of the services of the Junior Engineer/SDO the petitioner has the authority to take disciplinary action against LM Grade-II, Assistant Lineman, Meter Readers and Bill Distributors.
22. This is a prima facie position regarding the status of the petitioner as Junior Engineer. Anyway whether the petitioner continues to be a workman as contended by him in paragraphs 6 & 7 of the grievance petition or not and whether the duties being performed by the petitioner are a workman or an employer, is a question which requires consideration on merits and therefore, one can say that there is some kind of prima faice point to be looked into but keeping in view the circumstances of the case in nature of stay being asked for by the petitioner against an establishment like the respondents, there is no balance of convenience in favour of the petitioner because in case the stay is not granted to the petitioner, it would not cause any irreparable loss or injury to him because he already stands promoted and to falsify his claim, the respondents can assign him a duty any time which involves power of hire and fire which according to the respondents a large number of SDOs/Junior Engineers would be encouraged to form a similar union and agitate their rights as a workman thereby causing a great upset in the administration of the Wapda and the respondents".
23. The learned Single Member has rightly stated that in case of suspension of impugned order whereby the appellant has been stopped/restrained from Indulging in trade union activities, the other employees of Wapda having similar duty would also embark upon the same activities. We have purposely avoided to dilate upon the merits of the case as this exercise would prejudice the case of the either party. Resultantly for what has been stated above the order being interim in nature is unexceptionable and the appeal accordingly is dismissed.