' GHULAM NAUMAN SHAIKH (MEMBER).--- Facts of the above three petitions are same, as such applications under Regulation 32(2)(e) of N.I.R.C.(P&F) Regulations, 1973 moved in these petitions are being disposed of by this common order.
2. Facts of the case as stated in above three petitions are that the petitioners are employed as permanent workmen in the respondents establishment since several years. There are more than 6000 permanent workmen working, in the respondents establishment, but the respondents have not issued appointment letters to the workers including the petitioners and are not providing legal benefits to the workers under the labour laws. There are two trade unions in the respondents establishment, one namely Younus registered Textile Labour Union is the Collective Bargaining Agent. It is submitted that since the registration of the said union and certifying it to be Collective Bargaining Agent, neither its elections were held nor any charter of demands was submitted on the respondents, as such the elections of the union were held in accordance with its constitution on 10- 12-2006, wherein petitioners in Petition No,4A(88) of 2006/K, were elected as its office-bearers, whereas the petitioners in Petitions Nos.4A(92) of 2006/K and 4A(02) of 2007/K are its active members. Iftikhar Ahmed Abbasi, General Secretary of the Union submitted change of office- bearers to the Registrar Trade Unions Sindh Karachi on 14-12-2006 and informed the respondents about newly-elected office-bearers through a letter by registered post. It is submitted that after election of the union, meeting of the Managing Committee of the union was held and it was unanimously resolved that the charter of demands in respect of increase in the wages and other benefits of workers be submitted to the respondents, as such General-Secretary of the Union by notice under section 25 of the Industrial Relations Ordinance, 2002 served charter of demands on the respondents on 14-12-2006. It is alleged that after elections of the union and submission of charter of demands, management of the respondents started harassment and threatened the office-bearers and active members of the union including the petitioners to disown the union and withdraw the character of demands, otherwise services of all the office-bearers and Members of the union will be terminated without any reason. It was also threatened that various departments or whole of the Industry will be closed without obtaining permission from the Labour Court in accordance with Standing Order 11-A of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The office-bearers of the Union refused and filed a complaint on 15-12-2006 before the Director of Labour. It is alleged that there is serious apprehension that the respondents will terminate, dismiss, retrench, transfer or take any adverse action in respect of the employment of the petitioners, and close down the establishment. The actions taken or to be taken, are illegal, unlawful and amount to acts of unfair labour practice on the part of the respondents.
Initially Anwer Syed Badshah and 3 others elected as office-bearers of Younus Textile Labour Union filed Petition No,4A(88) of 2006/K and on 18-12-2006 the said petitioners in Petition No,4-A(88) of 2006/K were granted interim prohibitory order, whereby the respondents were restrained from dismissing, terminating, retrenching or passing any order adverse to the employment of the petitioners till next date, which continues from date to date. It is alleged that after passing the interim prohibitory order dated 18-12-2006 in the Petition No,4A(88) of 2006/K by this Bench of Commission the management of the respondents started more harassment and victimization amongst the members of the C.B.A. And threatened to all the active members of the Union including the petitioners in Petitions Nos.4A(92) of 2006/K and 4A(02) of 2007/K not to affiliate with C.B.A. Union and instigated to raise loudly slogans against the union, otherwise their services will be terminated without giving any notice. In this connection the President of C.B.A. Filed a written complaint before the Directorate of Labour on 26-12-2006, and also filed another complaint in respect of violation of various labour laws. The petitioners in Petition No,4A(92) of 2006/K and 4A(02) of 2007/K alleged that these acts of the respondents-management/officers are illegal, unlawful and direct interference in trade union activities, which are calculated to be acts of unfair labour practice in terms of section 63 of the Industrial Relations Ordinance, 2002. It is prayed to restrain the respondents, their officers and persons connected with them directly or indirectly not to transfer, discharge, dismiss, terminate or retrench as well as not to take any other action in respect of the employment of the petitioners due to their participation in trade union activities and during the pendency of industrial dispute. Further to restrain the respondents not to commit further actions against the petitioners, which are calculated as unfair labour practice in terms of section 63 of the Industrial Relations Ordinance, 2002. Further to direct the respondents not to change any terms and conditions of the employment of the petitioners as well as not to close down the whole Establishment or Department till the final decision of this case. In Petition No,4A(92) of 2006/K on 30-12-2006 and in Petition No,4A(02) of 2007/K on 11-1-2007 interim prohibitory orders were passed, thereby the respondents were restrained from dismissing, terminating, discharging transferring and retrenching the petitioners or passing any adverse order in respect of the employment of the petitioners or closing down the entire establishment till the next date, which continues from date to date.
3. The respondents filed reply statement with preliminary legal objections on main petition and counter-affidavit on application under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973. The legal objections raised by the respondents are that the petitioners do not have a common grievance, as such joint petition is not maintainable. The petition is not maintainable as grievance notice has not been served by the petitioners. The petition is not maintainable as the petitioners are not members of the trade union registered with National Industrial Relations Commission.
Iftikhar Ahmed Abbasi, petitioner No,2 is a Security Guard, as such he is not a workman and the petition filed by him is not maintainable. It is submitted that without waiting for acceptance of change of office-bearers submitted on 14-12-2006, Iftikhar Ahmed Abbasi, petitioner No,2 claiming to be General-Secretary of the Union has raised the Industrial dispute, such the Industrial dispute is not pending and petition is not maintainable. Certificate of C.B.A. Dated 20-11-2003 has expired on 19-11-2006, as such the petitioners cannot claim to be office-bearers of C.B.A., as such the petition is not maintainable. The prayer not to discharge, dismiss or terminate is vague, unspecific and general in nature and in violation of section 83(2) of I.R.O., 2002 read with Schedule-II, which recognize the right of the employer to conduct his business and the right to manage. The petition, therefore, is not maintainable. The Petition No,4A(88) of 2006/K is also not maintainable as out of four petitioners, the petition is verified by only Iftikhar Ahmed Abbasi, petitioner No,2. The Petition No,4A(92) of 2006/K is verified by only Ishtiaque Ahmed, petitioner No,1 out of nine petitioners as such it is not maintainable, so also Petition No,4A(02) of 2007/K, as it is verified only by Muhammad Shahzad, petitioner No,1. On merits the respondents have denied that there are 6000 permanent workmen working in the respondents-establishment. It is also denied that since long the petitioners are working. In reply of Petition No,4A(88) of 2006/K it is submitted that Answer Syed Badshah, petitioner No,1 was appointed on 26-9-2005, Iftikhar Ahmed Abbasi petitioner No,2 was appointed on 25-11-2004, Muhammad Ishaque petitioner No,3 was appointed on 1-1-2001 and Muhammad Ibrar petitioner No,4 was appointed on 28-6-2006. It is submitted that Iftikhar Ahmed Abbasi, petitioner No,2 in Petition No,4A(88) of 2006/K is Security Guard, as such is not a workman. It is submitted that tenure of three years of Younus Textile Labour Union as C.B.A. Has expired on 14-11- 2006, as such Younus Textile Labour Union at present is not C.B.A. It is denied that no election of Younus Textile Labour Union after its registration and its certification as C.B.A. Has been held. It is submitted that there was no occasion for Younus Textile Labour Union to give any charter of Demands, as financial benefits have been conferred by the management on the workers. It is denied that elections of Younus Textile Labour Union were held on 10-12-2006 and it is submitted that bogus papers were prepared and submitted to the Registrar of Trade Unions on 14-12-2006. So far change of office-bearers has not been accepted by the Registrar Trade Unions. It is denied that change of office-bearers was communicated to the management by the petitioners. It is submitted that without acceptance of change of office-bearers by the Registrar Trade Unions, Sindh, Karachi no charter of demands can be submitted. It is denied that after election of the union and submission of charter of demands the management of the respondents has started harassm ent and threatened the office-bearers and active members of the union. It is denied that the respondents 'demanded the petitioners to disown the union or to withdraw the charter of demands, otherwise threatened to close down the establishment. It is submitted that it is inherent right 'of the respondents to terminate, dismiss, retrench or transfer an employee provided these have not been done by way of unfair labour practice. It is submitted that if dismissal are to take place, it will precede issuance of charge-sheets, holding of enquiry, by giving full and fair opportunity. Neither unfair labour practice has been committed nor it is intended to be committed.
Neither there is closure of the establishment or any of its department nor any intention to do so. It is submitted that these allegations are levelled by the petitioners with mala fide intention to obtain ex parte stay order so as to avoid disciplinary action initiated against them. In the Petition No,4A(92) of 2006/K beside raising the similar legal objections and denials on merits of the case, further it is submitted that Niaz Muhammad Khan, Sarwar Khan and Gul Mali petitioners Nos.7, 8 and 9, respectively, are absconding from work since 14-12-2006 and due to their absence without permission for more than 10 days, show-cause notices have been served on them. It is submitted that termination, dismissal, transfer, retrenchment will be effected' strictly within the parameters of law and not by way of unfair labour practice. It is denied that after passing of the interim order by this Honourable Commission on 18-12-2006 in Petition No,4A(88) of 2006/K, the management of the respondents has started more .Victimization amongst the members of the union. It is submitted that no one has been threatened to disassociate from, the union. Similar legal objections have been raised and denials, submissions and assertions have been made by the respondents in the.
Petition No,4A(02) of 2007/K. Further it is submitted that change of office-bearers in respect of elections held on 10-12-2006 and submitted to the Registrar Trade Unions Sindh, Karachi on 14-12- 2006 has been rejected by the Registrar Trade Unions, Sindh Karachi vide his letter dated 9-1-2007 and change of office-bearers of the union received by the Registrar Trade Unions Sindh, Karachi vide letter dated nil has been accepted by the Registrar Trade Unions Sindh, Karachi on 25-1-2007, as such entirely different set of office-bearers of the Union has been. Accepted.
4. The petitioners in their respective petitions have tiled affidavitsin-rejoinder. In Petition No,4A(88) of 2006/K an additional affidavit-inrejoinder has also been filed by the petitioners.
5. I have heard arguments of Mr. Muhammad Khursheed, learned labour representative for the petitioners and Mr. Faisal Mahmood Ghani, learned Advocate for the respondents.
6. Mr. Muhammad Khursheed, labour representative for the petitioners has contended that there are two registered trade unions in the respondents establishment. One is Younus Textile Employees Union and another is Younus Textile Labour Union, which is Collective Bargaining agent. In the year 2003 six office-bearers of Younus Textile Labour Union were approved by the Registrar Trade Unions Sindh, Karachi. Out of them Yasin Advani, General-Secretary was working as Senior Export Incharge, M. Ahmed Qadri, Vice-President was working as Assistant Admn. Officer and Hussain Aziz, President was working as Market Executive as mentioned in the list of employees submitted by the respondents to the Registrar of Trade Unions Sindh, Karachi at the time of referendum. These above said principal office-bearers were therefore in officer cadre and not workmen. In the newly approved list of office-bearers on 25-1-2007 by the Registrar Trade Unions, Sindh Karachi Muhammad Ahmed Qadri, Vice-President is working as Assistant Admn. Officer and Farhat Hamid Khan, General Secretary is working as H.K. Incharge as mentioned in the list of employees submitted by the respondents to the Registrar Trade Unions Sindh, Karachi at the time of referendum. Mr. Muhammad Khursheed Labour representative for the petitioners has contended that the respondents have raised objection that Iftikhar Ahmed Abbasi, petitioner No,2 in Petition No,4A(88) of 2006/K cannot be elected as General-Secretary, as he is Security Guard and is not a workman. It is submitted that in newly accepted office-bearers on 25-1-2007 by the Registrar Trade Unions, Sindh Karachi, Shafqat Anwar President is also a Security Guard as mentioned in the list of employees submitted by the respondents to the Registrar Trade Unions, Sindh, Karachi at the time of referendum. Whether Iftikhar Ahmed Abbasi, petitioner No,2 in Petition No,4A(88) of 2006/K being a Security Guard, is or is not a workman can be determined after evidence of parties is recorded. It is submitted that since the registration and certification of Younus Textile Labour Union as Collective Bargaining Agent, no proceedings of the union had taken place and no charter of demands was served on the respondents, as such the union virtually was non-existent. The petitioners and other workers then held elections of the union on 10-12-2006, wherein petitioners in Petition No,4A(88) of 2006/K were elected as office-bearers and change of office-bearers was submitted to the Registrar Trade Unions Sindh, Karachi on 14-12-2006 and such intimation was given to the respondents. After elections, on 12-12-2006 it Was resolved by the petitioners and other members of the union to give charter of demands, which was served on the respondents on 14-12- 2006. It is submitted that after election of the union and serving of charter of demands, the respondents started victimizing and threatening the petitioners to disown the union and withdraw charter of demands, otherwise office-bearers and members of the union will be terminated and factory will be closed. It is submitted that change of office-bearers submitted on 14-12-2006 to the Registrar Trade Unions, Sindh Karachi has been rejected by the Registrar Trade Unions, Sindh, Karachi vide letter dated 9-1-2007. It is submitted that new set of office-bearers have been accepted by the Registrar Trade Unions, Sindh, Karachi vide letter dated 25-1-2007. Both these orders have been challenged in two separate appeals by the petitioners before Fifth Sindh Labour Court, Karachi. It is submitted that the respondents had not issued appointment letters to the petitioners and appointment letters filed by the respondents with reply statement are forged and do not bear signatures of the petitioners. It is submitted that charge-sheets issued to the petitioners are also false, as there had been no complaint against the petitioners prior to election of the union and serving of charter of demands. It is submitted that the respondents have gate stopped the petitioners Nos.7, 8 and 9 in the Petition No,4A(92) of 2006/K.
7. Mr. Faisal Mahmood Ghani, learned Advocate for the respondents has contended that on 14-12- 2006 change of office-bearers was filed before the Registrar of Trade Unions, Sindh, Karachi and without waiting for its . Acceptance, the union through Iftikhar Ahmed Abbasi petitioner No,2 in the Petition 4A(88) of 2006/K claiming to be General Secretary of the Union, served charter of demands on the respondents-management. This was done with mala fide intentions to fulfil requirement of proviso to clause (e) of subsection (4) of section 49 of the Industrial Relations Ordinance, 2002. This change of office-bearers has been rejected by the Registrar Trade Unions, Sindh, Karachi on 9-1- 2007.. Subsequently, another change of office-bearers had taken place and new set of office- bearers has been accepted by the Registrar Trade Unions, Sindh Karachi on 25-1-2007. It is submitted that only valid set of office-bearers can raise the Industrial dispute. Charter of demands served by earlier elected office-bearers is not valid. Since invalid Industrial dispute was pending at the time of presentation of the petition, as such condition under proviso to clause (e) of subsection
(4) of section 49 of the Industrial Relations Ordinance, 2002 for grant of interim relief is not fulfilled.
It is contended that neither the respondents have committed unfair labour practice nor they intend to commit unfair labour practice. There can be no general order to restrain the legal right of the respondents to take disciplinary action. Against the petitioners, which right is conferred under section 83(2) read with Schedule-II of the Industrial Relations Ordinance, 2002. It is submitted that the petitioners have started committing acts of misconduct. They have been' issued charge- sheets, but no action has been taken against them. It is contended that the term of Younus Textile Labour Union of three years as Collective Bargaining Agent has expired long before serving of charter of demands. It is submitted that there are general and bald allegations of unfair labour practice. It is submitted that the respondents have issued appointment letters to the petitioners, which have been filed in the petitions. Assuming for the sake of arguments the respondents have violated provisions of Standing Orders Ordinance by not issuing appointment letters, the same itself is not an act of unfair labour practice. In support of his contentions Mr. Faisal Mahmood Ghani, learned Advocate fox the respondents has placed his reliance on the following : --
(1) PLD 196.1 Dacca 389, (2) PLD 1988 SC 53, (3) 1991 PLC 876 (Lahore High Court), (4) 1991 PLC 879 (Labour Appellate Tribunal Punjab), (5) 2001 PLC 86. (National Industrial Relations Commission Full Bench),. (6) 2007 PLC 133 (National Industrial Relations Commission Full Bench), (7) 2002 PLC 87 (Karachi High Court), (8) 1980 PLC 256 (Karachi High Court), (9) 2006 TD (Labour) 329 (National Industrial Relations Commission Member), (10) 1980 PLC 752 (Lahore High Court), (11) unreported judgment of High Court of Sindh, Karachi in case of Messrs Alwin Engineer Industries Ltd. v. National Industrial Relations Commission and another Constitutional Petition No,235 of 2005, (12) Unreported judgment of High Court of Sindh, Karachi in case of Sindh Alkali Limited and 3 others v. Senior Meniber National Industrial Relations Commission and another Constitutional Petition No,D-1358 of 1980, (13) Judgment of Honourable Supreme Court of Pakistan in case of Sandoz (Pakistan) Ltd.
Karachi v. Sindh Labour Appellate Tribunal and another Civil Appeal No,335-K of 1986.
8. I have considered arguments of Mr. Muhammad Khursheed Labour Representative for the petitioners and Mr. Faisal Mahmood Ghani, learned Advocate for the respondents and have gone through the petitions, applications wider Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973 filed by the petitioners, reply statements with preliminary legal objection and counter-affidavits filed by the respondents, affidavit-in-rejoinder and additional affidavit-in-rejoinder filed by the petitioners and documents produced by the parties.
9. It shall be pertinent to point out that except the alleged instance that after election of the union held on 10-12-2006, wherein petitioners in Petition No,4A(88) of 2006/K were elected as office- bearers and serving of charter demands on the respondents management by Younus Textile Labour Union through Iftikhar Ahmed Abbasi petitioner No,2 in Petition No,4A(88) of 2006/K, General-Secretary (elected on 10-12-2006) causing annoyance to the respondents so as to start victimization of the petitioners and issuing them threats either to disown the union and withdraw charter of demands, else their services will be terminated, no other specific instance of victimization in the past on account of trade union activities has been mentioned by the petitioners. Regarding the present allegation of victimization and threats by the respondents, the petitioners have yet to establish the same by producing evidence. Even otherwise the change of office-bearers said to have been elected in election held on 10-42-2006 and submitted on 14-12- 2006 to the Registrar Trade Unions, Sindh Karachi has been rejected by the Registrar Trade Unions, Karachi vide his letter, dated 9-1-2007. On the contrary new set of office-bearers submitted to the Registrar Trade Unions, Sindh, Karachi has been accepted by the Registrar Trade Union, Sindh Karachi vide letter dated 25-1-2007 No doubt both above said orders, dated 9-1-2007 and 25-1- 2007 of the Registrar Trade Unions Sindh Karachi have been challenged in two separate appeals filed under section 9(9) of the Industrial Relations Ordinance, 2002 by the petitioners before Fifth Sindh Labour Court, Karachi, where the same are sub judice. However, at present the position which emerges is that petitioners in Petition No,4A(88) of 2006/K cannot be considered as office-bearers of Younus Textile Labour Union, as such charter of demands served by Younus , Textile Labour Union through~ Iftikhar Ahmed. Abbasi, petitioner No,2 in Petition No,4A(88) of 2006/K, claiming to be General-Secretary of C.B.A. Union, without waiting for the order of acceptance of change of office bearers by the Registrar Trade Unions, Sindh, Karachi, therefore, in the present circumstances of the case does not appear to be validly raised industrial dispute. In case of Iftikhar Ahmad and others v.
President, National Bank of Pakistan and others reported in PLD 1988 SC 53 at page 66 it was observed that the cases which the Benches are empowered to hear under section 22-B(3)(a) of Industrial Relations Ordinance, 1969 must have an element of unfair labour practices in them, it does not encompass' cases where no allegation of unfair labour practices is made. It may be mentioned that sections 15 and 16 of the Ordinance set out instances of unfair labour practices on the part of the employers as well as workmen It is therefore, no right to construe the clause in question as conferring a general jurisdiction upon the Benches to entertain all kinds of grievance petitions even though they may not be relatable to unfair labour practices. In Constitutional Petition No,D-235 of 2005 Messrs Alwin Engineering Industries Ltd. v. National Industrial Relations Commission, Full Bench, it was observed by Honourable High Court of Sindh at Karachi that proviso to section 49(4)(e) makes it explicitly clear that no interim relief could be granted against the transfer of the workman unless an industrial dispute was pending. In case of United Bank Employees Federation of Pakistan v. Messrs United Bank Limited reported 2007 PLC 133 this Bench of Commission held that proviso of clause (e) of subsection (4) of section 49 of the I.R.O., 2002 bars the grant of interim relief, when there is no industrial dispute pending. Anwar Syed Badshah, Iftikhar Ahmed Abbasi, Muhammad Ishaque and Muhammad Ibrar petitioners in Petition No,4A(88) of 2006 have been issued charge-sheets so also letters of enquiry and enquiries are being conducted by the respondents against the said petitioners. Niaz Muhammad Khan petitioner No,7, Sarwar Khan, petitioner No,8 and Gul Mahi petitioner No,9 in Petition No,4A(92) of 2006/K have also been issued charge-sheets. It is right of the respondents to conduct the enquiries on the charge-sheets issued against the petitioners. This right cannot be curbed or curtailed. Mere issuance of charge- sheet and holding of enquiry even if the employee happen to be an office-bearer of the Union, itself is not an act of unfair labour practice on, the part of employer. In case of Pakistan Machine Tool, Factory (Pvt.) Ltd. v. Muhammad Siddique reported in 2001 TD (Labour) 85 at page 92 Full Bench National Industrial Relations Commission held that law by now is fairly well- settled that it is the inherent right of the employer to initiate disciplinary proceedings against an allegedly delinquent employee and to decide whether the charge levelled against him is correct or not and in our view, ordinarily it does not lie with this Commission to intervene while the proceedings are still in progress and to quash such proceedings on the, plea of unfair labour practice. Needless to state that in case any adverse order is finally passed against the employee in such proceedings, it is of course open to challenge the same in appropriate proceedings. In case of M. Muzaffar Ali _v Chairman N.I.R.C. And others reported in 1991 PLC 876 at page 878 Honourable Lahore High Court held that a perusal of the allegations made in the complaint filed by respondent No,2 shows that the allegations, even if correct, do not attract any of the clauses of section 15 of the Industrial Relations Ordinance, 1969, nor was a case of unfair labour practice made out The petitioners were acting in lawful performance of their duties and it was in that connection that they made the reports and held inquiries. The assumption of jurisdiction on the ground that the allegations were not correct, or the show-cause notices and the inquiry were defective, was clearly uncalled for as none of the acts' complained of amounted to unfair labour practices. It is thus evident that respondent No,1 acted in excess of his lawful authority in assuming jurisdiction and issuing impugned notices to the petitioners. In case of Searle Pakistan Limited through Deputy Director v.
Full Bench, National Industrial Relations Commission, Islamabad and 2 others reported in 2002 PLC 87 Honourable Karachi High Court observed that employer in initiating proceedings against the employer on the basis of inquiry report submit' ed by the Inquiry officer was not guilty of committing unfair labour practice as defined in section 15 of Industrial Relations Ordinance, 1969.
Exercise of jurisdiction by National Industrial Relations Commission under section 22-A(8)(g) of Industrial Relations Ordinance, 1969 was beyond of its jurisdiction.
10. With regards to appointment letters, the petitioners have alleged that the respondents had not issued the appointment letters to the workers including the petitioners. This allegation of the petitioners is denied by the respondents in their reply statements and the respondents with reply statements have filed appointment letters of the petitioners. In affidavitin-rejoinder filed by Muhammad Shahzad, petitioner No,1 in Petition No,4A(02) of 2007/K, it has been stated that these appointment letters were not received by the petitioners and on these appointment letters the respondents have manipulated forged signatures of the petitioners. The above said facts regarding appointment letters asserted/alleged by the petitioners since have been categorically denied by the respondents will require recording of evidence of the parties, so as to decide and determine the genuineness or otherwise of appointment letters and their receiving or not receiving by the petitioners and no findings to this effect can be recorded without recording evidence at this stage of disposal of applications under Regulation 32(2)(c) of N.I.R.C. (P&F) Regulations, 1973, as such at this stage it cannot be said that appointment letters are manipulated and bear forged signatures of the petitioners.
11. For grant of interim relief besides to show that an industrial dispute is pending, the petitioners shall also have to show at least prima facie that allegations made in petition filed under section 49(4)(e) of Industrial Relations Ordinance, 2002 coupled with some other material, if any, placed on record, disclosed commission of an unfair labour practice, on part of employer because on such a finding depended exercise of jurisdiction of National Industrial Relations Commission. The concepts of balance of convenience/inconvenience and irreparable loss also shall be present in the case in favour of the petitioners for grant of interim relief, which in the present petitions do not appear to be present in favour of the petitioner to grant them interim relief. In case of Ali Gohar and Company (Pvt.) v. Saeed Ahmad and 15 others through Ali Gohar & Co. Reported in 2001 PLC 86 at page 92 Full Bench National InduStrial Relations Commission held that there can be no cavil with the proposition which by now is well-settled that before granting interim relief, the Court or the Tribunal must find whether there existed a prima facie case in favour of the person seeking the interim relief and it must also examine the concepts of balance of convenience/inconvenience and irreparable loss. In a case like the present one which is based on the allegations of unfair labour practice, the learned Member before proceedings to grant the interim relief should have found at least prima facie that the allegations made in the petition coupled with some other material, if any, placed on the record before him disclosed the commission of an unfair labour practice on the part of the employer/ appellant because on such a finding depended the exercise of jurisdiction of N.I.R.C.
Perusal of the impugned order shows that not even a passing reference has been made to this aspect of the matter. The learned Member does not appear to have considered that the grievance agitated before him was relata le to the unfair labour practice. The learned Member is also not shown to have examined the question of interim relief with reference to the provisions of Regulation 32(2) which in terms is attracted only when there is some apprehension that an unfair labour practice is likely to occur to prevent which some interim measure is called for. Further it was observed that the learned Member before passing the impugned order did not keep in view the relevant considerations and the legal/statutory requirements governing the grant of interim relief.
' For the foregoing reasons I am of the considered view that the petitioners have neither prima facie case nor concept of balance of convenience/inconvenience and irreparable loss are in their favour. Accordingly applications under Regulation 32(2)(c) of National Industrial Relations Commission (P&F) Regulations, 1973 moved by the petitioners in Petitions Nos.4A(88) of 2006/K/24(102) of 2006/K, 4A(92)2006/K 24(106) of 2006/K and 4A(02) of 2007/K-24(05)2007/K, are hereby dismissed and interim prohibitory orders dated 18-12-2006 passed in Petition No,4A(88) of 2006/K/24(102) of 2006/K interim order, dated 30-12-2006 passed in Petition No,4A(92) of 2006/24(106) of 2006/K and interim order dated 11-1-2007 passed in Petition No,4A(02) of 2007/K/ 24(05) of 2007/K are hereby vacated/recalled. Needless to say that inquiries being conducted by the respondents against the petitioners shall be fair and impartial. To come up on 28-3-2007 for fling affidavits-inevidence by the petitioners.
' Announced in open Court.
' Given under my hand and seal of the Commission, this 7th Day of March, 2007.