' The facts leading to this appeal filed by the appellants are that respondent Mohammad Shafique Qamar, General Secretary, All Pakistan NESPAK Employees' Union, 409, WAPDA House, Lahore, was served with a charge-sheet on 16th December, 1982 for acts of misconduct as defined under Standing Order 15 (3) (c), 15 (3) (h) and 15 (3) (k) of W. P. Industrial and Commercial (Employment)
Standing Orders Ordinance, 1968. An enquiry was held into the charges. He was found guilty and was dismissed from service on 27th June, 1983. He sent a grievance notice and also filed two cases before the Commission against his dismissal ; one was a complaint under section 15 read with section 53 of the Industrial Relations Ordinance, 1969, and the other was a civil petition under section 25-A of the said Ordinance seeking his re-instatement. In the civil petition he also moved a miscellaneous application praying for suspension of the dismissal order till the decision of the civil petition. The learned Member Mr. Aziz Ahmad, on the same day suspended the dismissal order dated 27th June, 1983 till the final decision of the petition. The appellants moved an application for vacation of the said stay order before the Senior Member of the Commission. However, this application was rejected on the ground that the order passed by the learned Member (Mr. Aziz Ahmad) was final order which could only be upset in an appeal by a Full Bench of the Commission.
This appeal, therefore, has been preferred for setting aside the stay by the learned Member on 29th June, 1983.
2.. The learned counsel for the appellants attacked the jurisdiction of the Commission on the ground that a Civil petition under section 25-A for seeking re-instatement is not maintainable as NESPAK has been declared as an essential service under the Pakistan Essential Services (Maintenance) Act, 1952, particularly, in view of the Supreme Court. Decision in Appeals Nos, K-85 to K-88 of 1979. He further contained that the Commission has no powers to suspend an order of termination which has already been taken effect. He cited PLD 1973 Kar. 189, 1980 PLC 752, PLJ 1983 Tr. C.
17. He therefore, argued that status quo ante cannot be granted. In support of his contention he cited PLD 1970 SC 139 and 1970 SCM R 491. He further argued that the Commission has the powers to grant relief to the workers in case of unfair labour practice as is provided under regulation 32 of the National Industrial Relations Commission (Procedure and Functions) Regulation, 1973. He submitted that clause (1) of Regulation 32 is not relevant in the present case, as the relief can only be granted to the petitioner after he secures a conviction under section 15 read with section 53 of the Ordinance. He further, contended that the provisions of clause (2) of Regulation 32 can only be invoked when there is an apprehension that an act of unfair labour practice is likely to occur. He submitted that where offence has already been committed provisions of Regulation 32 (2) cannot be invoked. He further contended that neither any, prima facie case was made out by the petitioner nor any irreparable loss was suffered by the petitioner as he could be reinstated in service with all the back benefits provided he succeeds in his petition under section 25-A of the Ordinance.
3. The learned counsel for the respondents contended that the order of the learned Member suspending the operation of the dismissal order is valid on the ground that the dismissal had not taken place on the date when the stay order was granted. He submitted that the order of dismissal was not served on the respondent. He further submitted that the charge was also not taken from the respondent. The learned counsel for the appellant submitted that a perusal of the petition and the miscellaneous application itself shows that the order of dismissal was in the knowledge of the respondent. He further submitted that grievance notice was also served by the respondent in respect of the dismissal order.
4. We find much force in the contention of the learned counsel for the appellants that the respondent had miserably failed to establish a prima facie case for the issuance of an interim order. The respondent was charge-sheeted for having made speeches with other outsiders during working hours in the premises of the appellants Company. It was also alleged in the charge-sheet that for about 30 minutes the work was stopped which amounted to an illegal strike. An enquiry officer was appointed to conduct the enquiry and found the respondent guilty of the charges. In our opinion the prima fade case existed against the respondents rather than in favour of the appellants. We are also of the opinion that the other ingredient for the issuance of an interim stay order i. e. Irreparable loss was also not present. If the petition under section 25-A of the Ordinance is decided in favour of the respondent he would be entitled to be re-instated with all back benefits.
We therefore vacate the impugned order dated 29th June, 1983 on these grounds. We do not find it necessary to give our decision on other points raised by the learned counsel for the appellants. As regards legal objection relating to jurisdiction under the Pakistan Essential Services (Maintenance)
Act, 1952, we reserve our opinion. The ground may be agitated before the Single Bench of the Commission in the first instance.
5. Before parting with the judgment we would like to mention that the learned representative Malik Mehrban assisted the learned counsel for the respondent and contended that the impugned order is not appealable on the ground that it is an interim order and not a final order. In our opinion the miscellaneous application has finally been disposed of by the impugned order and therefore an appeal is maintainable. More-over, the Union of which the respondent is the General Secretary is as industry-wise trade union and Full Bench of the Commission noting as Labour Appellate Tribunal can exercise revisional powers under section 38 (3-A) of the Ordinance.
Interim order vacated.