' RUSTAM S. SIDHWA, J.--This is a constitutional petition filed by Lever Brothers Pakistan Limited calling in question the ad interim order of the Senior Member of the National Industrial Relations Commission dated 13th October, 1983 in a petition filed before him by the Lever Brothers Employees Union under sections 15 (b) and (f) and 22-A (8) (g) of the Industrial Relations Ordinance, 1969.
2. The brief facts of the case are that an application under sections 15 (b) & (f) and 22-A (8) (g) of the Industrial Relations Ordinance, 1969 (hereinafter to be referred to as "the I. R. O.") was moved by Muhammad Suleman, General Secretary, Lever Brothers Employees Union Rahimyar Khan, the present respondent No, 2, against the Lever Brothers (Pakistan) Limited Karachi, the present petitioner, and three of its officers, before the National Industrial Relations Commission (hereinafter to be referred to as "the Commission") calling in question an office order issued by the petitioner on 6th October, 1983 whereby 76 employees of the Lever Brothers Employees' Union were transferred to a reserve pool, On the ground that it constituted unfair labour practice and that the Commissioner should take cognizance of the case, issue summons to the accused and try and sentence them according to law. With the said petition, and application under section 22-A (8) (g) of the I. R.
0. Read with Regulation 32 of the N. I. R. C. Regulations, was also filed, as per Annexure H-2 lodged with the writ petition, praying for certain interim reliefs to prevent further unfair labour practice. The Commissioner, apprehending that the further continuance of the impugned office order was likely to generate further unfair labour practice, issued as ad interim order on 13th October, 1983 which- (A placed the transfer of seven employees, who were office-bearers etc., of the Union, in abeyance till further orders.
(ii) directed the petitioner not to re-employ, until further orders, the workers on the reserve pool on jobs other than those on which they were working before their transfer to the said pool ;
(iii) directed the petitioner not to employ casual, temporary or contract workers on jobs which were previously done by the workers who had been transferred to the reserve pool ; and
(iv) directed the petitioner not to suspend, discharge, dismiss or retrench workers or to reduce wages, by way of unfair labour practice, until further orders. Being aggrieved by the said order, the petitioner has filed the present constitutional petition challenging the same.
3. During arguments, both the learned counsel for the petitioner and respondent No, 2 attempted to dislodge and support respectively -the impugned order by facts, figures and other circumstances, in support of their respective cases, but realizing that the matter was sub judice before the Commission and that if I gave any findings or drew any inferences in the said connection, the same would adversely affect their respective cases before the Commission, both the learned counsel agreed that the present writ petition should only answer the limited legal question, namely, whether an interim order could be passed by the Commission under Regulation 32 (2) of the N. I. R.
C. Regulations, in terms of this Court's decision in Hotel Inter-Continental's case . Originally also, during the motion hearing, learned counsel for the petitioner had challenged the ad interim order on the ground that the same could not have been issued, in view of the case cited above, and the petition was admitted to consider this basic point. Both the learned counsel for the petitioner and the respondent have, therefore, agreed that this Court should only decide the limited legal question involved, leaving the parties to argue their cases relating to interim relief before the Commission.
4. On behalf of the petitioner, it is submitted, following this Court's decision in the case of the Hotel Inter-Continental, Rawalpindi that till such time that steps laid down in clauses (a) to (b) of sub- regulation (2) of regulation 32 of the N. I. R. C. Regulations are not resorted to by the Commission, no interim relief at all can be granted by the Commission. Relying upon Shebar Khan's case it is urged that a Labour Court has no inherent powers pass interim orders, Referring to Dr. Aijaz Hussain Qureshi's case , it is contended that unless an interim order is ancillary or incidental to the process of adjudication, as opposed to the same being consequential to a finding to ' be arrived at after trial or full disposal of a case, the same cannot be granted. Lastly, relying upon Bayer Pharma's case and Corning Glass Company's case , it is urged that the transfer of the workers to the reserve pool, without detriment to their rights, including financial emoluments, in consequence of a bona fide reorganization plan, is permissible to the employer and cannot be disturbed in law.
5. On behalf of the respondent, relying upon the Supreme Court's decision in the case of Sind Employees Social Security Institution , it is urged that the power to grant interim relief is always available to a tribunal, even if the same is not provided by statute, provided that the interim relief sought is reasonably incidental or ancillary to the main matter before it. It is further urged that the cases cited by the learned counsel for the petitioner are distinguishable. It is lastly contended, relying upon section 23-C (3)(c) of the I.R.O., that any form of reorganization plan can only be put into effect by the Joint Management Board, in which the workers' participation is there, and the same not having been done, the management had no unilateral right to thrust such a redical plan, having such far-reaching consequences, by the back door.
6. I have given my anxious consideration to this case. In the instant case, respondent No, 1 has not only filed a petition before the Commission complaining of an unfair labour practice that has been committed by the petitioner-Company and its officers, but also, by an application filed inter alia under Regulation 32 (2) of the N. I. R. C. Regulations, has sought certain interim reliefs with regard to certain unfair labour practices which may be committed by the further consequential implementation of the impugned office order. In the instant case, it is urged that a Vice-President, an Assistant Publicity Secretary and three members of the Managing Committee of the Union and1 2 3 4 5 6 two Shop Stewards have been placed in the reserve pool. In their own departments, where they were originally posted, they bore certain seniority and position. If at any future time they are retransferred to other departments, where they are misfits, it is stated that it would not only affect their conditions of employment, within the meaning of clause (c) of subsection (1) of section 15 of thebut also injure them in respect of their employment within the meaning Of clause (d) of subsection (1) of the same section. It is contended that there is an' industrial dispute pending between the parties about the grant of bonus and that such transfers could also be treated as intimidation, coercion or pressure brought to bear on the officers of the collective bargaining agent to arrive at a settlement with the employers, within the meaning of clause (f) of subsection (1) of section 15. It is also pointed out that an employer, pending an industrial dispute, cannot change the terms and conditions of service of workmen and that the present reorganisation plan has changed and is further capable of changing such terms, and the same amounts to a violation of section 47 of the I. R. I would not like to give any opinion on these submissions, but to me it occurs that should the Commission, on the basis of affidavits, pleadings and other material before it, find prima facie that these factors are reasonably likely to give rise to some unfair labour practice, within the meaning of, clause (b) of vsub-regulation (2) of Regulation 32, then I do not see any reason why it should not have the authority to grant interim relief, as stated in o akin to clauses (c) to (e) of the same sub-regulation.
In this connection. The decision of the Supreme Court in the case of the Sind Employees Social Security Institution is clear. Such an interim order can be passed even if the law does not so provide, provided it is incidental or ancillary to the proceedings and the circumstances of the case imminently justify it. In a case under sub-regulation (2) of Regulation 32, it will be incidental or ancillary, if it enables the Commission to exercise its jurisdiction conferred under the said provision more effectively and in accordance with the requirements of justice and reason. It will not be so. If it is otherwise. Under the "ancillary jurisdiction doctrine", a Court or Tribunal has jurisdiction over a case or controversy in its entirety and has, as incident to the proper disposal of the matter before it, full jurisdiction to decide other matters raised in the case. The term "ancillary" denotes any claim or relief that may collaterally arise out of or be dependant upon or otherwise auxiliary to a claim asserted. A matter which is "incidental" is something which appertains to or depends upon something else which is the main purpose. In appropriate cases an interim relief would be incidental or ancillary for the proper exercise of jurisdiction conferred on a Court or Tribunal under a relevant provision of law, for more effectively doing justice in the case. It is clear that Regulation 32 (2) is intended to prevent the apprehended Commission of any unfair labour practice. If the Commission, cannot pass an interim order to prevent an immediately threatened" transgression, even though reasonable material for the same is before it, on the ground that it must first comply with clauses (a) to (b) of sub-regulation (2) of Regulation 32, the very purpose of the regulation would be lost and the unfair labour practice committed. The principle as laid down by the Supreme Court in the case of the Sind Employees Social Security Institution was not pointed out to the Court in the Hotel Inter-Continental's case. However, the latter case proceeds on distinguishable facts. In this case, one of several employees, who was suspended, pending inquiry that was to be held against him, filed an application before the Commission alleging acts of unfair labour practice and another application for suspension of the order. On the latter application, the Commission directed the Management to maintain status quo and to allow the office-bearers and the Union members to perform their duties in order to bring better understanding between the parties. The Hotel Management challenged this interim order in writ proceedings, which petition was accepted. The case basically is one under sub-regulation (1) of Regulation 32, to which the proviso under that sub-regulation is applicable and acts as a bar to the grant of any interim relief by way of reinstatement of the worker. This case is, therefore, distinguishable on facts. The present case is not under sub-regulation (1) but under sub-regulation (2) of Regulation 32, which deals with an application for preventing any unfair labour practice that has not been committed, but is apprehended. To the extent, therefore, that the Hotel Inter Continental's case provides (in para. 17 of its judgment) that no interim relief in any form can be provided by the Commission in such a case, without first resorting to steps laid down in clauses (a) to (b) of sub-regulation (2) of Regulation 32, I would respectfully dissent from this view. Shebar Khan's case deals with the question whether a Labour Court can review its own order passed in a criminal case filed before it under sections 15 and 53 of the I. R. O. It was held that it could not do so under law.
' The submission that it had inherent power to review the order, was repelled. The present case does not deal with the question of inherent powers or review. This case, therefore, does not assist me in any way. As regards Dr. Aijaz Hussain Qureshrs'case, the same is also one under sub- regulation (1) of Regulation 32. In that case two employees whose services were dismissed after a domestic inquiry, filed a petition under section 53 of the I. R.
0. Read with Regulation 32 of the N. I. R. C. Regulations for the punishment of the employer for having committed an unfair labour practice. In view of the proviso to sub-regulation (1) of Regulation 32 which gave a discretion to the Commission, while awarding punishment under section 53 of the I. R. O., to also order the reinstatement of the worker. With consequential benefit to him, it was held that the interim relief granted by the Commission reinstating the worker was not incidental or ancillary to the process of adjudication, but was consequential to the finding of guilt which could only be given after the conclusion of the main case and, therefore, the ad interim order of reinstatement was not permissible. This case is distinguishable as the relevant interim relief was impliedly barred by the law and the ad interim order did not prevent any apprehended unfair labour practice. I need only add that I have already affirmed above that if the interim order is ancillary and incidental to the proceedings under sub-regulation (2) of Regulation 32, the same can be passed. If the interim order can reasonably be taken to be a genuine requirement of the process of adjudication to the proceeding a under the said sub-regulation, it is permissible and if it is permissible, an ad interim order is available as a necessary corollary. Since the application for interim relief under sub-regulation (2) of Regulation 32 is coming up before respondent No, 1 for arguments on 31st October, 1983 and the Commission will go into this matter, I would not like to make any observation or give any finding as to whether a prima facie case stands made out for the interim relief, as that would prejudice the case of both the parties before the Commission. For the purposes of this. Petition, I would only affirm that an interim order can be passed in proceedings under sub-regulation (2) of Regulation 32 of the N. I. R. C. Regulations, if the Commission should find it incidental or ancillary C to the exercise of its jurisdiction conferred under the said sub-regulation for more effectively doing justice in the case and the circumstances of the case imminently justify it.
7. Whilst on the subject, I cannot help but note that the interim relief in this case is sought on the basis of an application which is relatable to the main petition for relief under sections 15 (b) and (f) and 22-A (8) (g) of the I. R. O. To me it appears from the language of Regulation 32 that there can be a distinct substantive case filed before the Commission by a party complaining of an unfair labour practice that is likely to be committed, but which has not been committed, and a case, as the present, where the substantive case is one for punishment of an unfair labour practice already committed, but where some further unfair labour practice is apprehended and for the prevention of which an application by way of further statutory relief under Regulation 32 (2) is filed. Sub- regulation (2) of Regulation 32 of the N. I. R. C. Regulations aptly covers both such cases. The latter type of case basically would not be one for ancillary relief to the main case but for further statutory reliefs relatable to the main case filed under sub-regulation (1) of Regulation 32 ; the only special feature being that the Commission would have to deal with the maim case, under section 25-A, 34 or 53 of the I. R.
0., and the application for further statutory reliefs under clause (a) of sub-regulation (2) of of Regulation 32 of the N. I. R. C. Regulations. This matter regarding the further statutory reliefs would not be decided on affidavits alone, as in the case of matters like temporary injunctions, etc. ; the relevant procedure, as stated in clause (a) of sub-regulation (2) would have to be adopted and the Union would have to submit itself to such inquiry as the Commission may hold and to produce such evidence, which it considers desirable in the said inquiry. But this does not mean that no interim order can be passed in such an application for further statutory relief, if it is incidental or ancillary to the main jurisdiction under sub-regulation (2) of Regulation 32. I have dealt with this aspect in para. 6 above and I need not drag a greater length of chain any further.
8. For the reasons stated above, no interference is called for in this case. This petition is dismissed.
The respondents shall be entitled to their costs. 1980 PLC 752c 1981 PLC 360 PLD 1976 Lah. 611 1981 PLC 24 PLD 1975 Kar. SQ PLD 1975 SC 32