' FAZL-1- MAHMOOD, J.-This Intra-Court Appeal has been filed to assail the validity. Of an order of a learned Single Judge of this Court dismissing the appellant's writ Petition No, 429 of 1983 which was filed to challenge the legality of the ad interim order of the Senior Member of the National Industrial Relations Commission, dated 13-10-1981
2. The writ petition had been filed in the background that an application under section 15 (b) & ( f) and 22-A (8) (g) of the Industrial Relations Ordinance, 1969 had been moved by Muhammad Suleman, General Secretary, Lever Brothers Employees Union, Rahimyarkhan, against the employer Lever Brothers (Pakistan) Limited, Karachi and three of its Officers. The grievance had arisen out of the fact that an office order was issued by the employer on 6-10-1983 whereby 76 employees were transferred to a reserve pool on the ground that it constituted an unfair labour practice and that the Commission should take cognizance of the case, summon the accused and try and sentence them according to law. This application was accompanied by another application under section 22-4 (8) (g) of the Industrial Relations Ordinance read with Regulation No, 32 of the N. I. R. C.
Regulations seeking certain interim reliefs to prevent the commission of further unfair labour practices.
3. These applications were taken up for hearing by the Senior Member of the N. I. R. C. On 13-10.1983 when vide his ad interim order of the same date be observed that being satisfied that circumstances existed for the issuance of an interim prohibitory order, it was directed that transfer order of the workers specified in para. 2 of his impugned order shall be kept in abeyance until further orders. The employers were further directed not to employ until further orders the workers of the reserve pool on jobs other than those on which they were working before-their transfer t reserve pool. While taking notice of the complaint the work of persons transferred to reserve pool was being taken from casual, temporary and contract workers, it was further directed that the respondents to those proceedings would not employ casual, temporary or contract workers on jobs which were previously being done by the workers who had been transferred to reserve pool. It was also directed that the employers shall not suspend, discharge or dismiss or retrench or reduce wages by way of unfair labour practice until further orders. In the meanwhile, however, a copy of the miscellaneous application was ordered to be sent to the respondents to those proceedings for parawise comments. It was further directed that notice may also be issued to the respondents to show cause why the interim order should not be confirmed. The case was accordingly adjourned to come up on 26-10-1983 at Karachi.
4. The appellant instead of showing cause or appearing before the Senior Member of the N. L R. C.
After submitting parawise comments rushed up to this Court by way of Writ Petition No, 429 of 1983 which was instituted on 24-10-1983, i. e. Two days before the case was fixed before the N. I. R. C. The writ petition was admitted to a regular hearing on 25-10-1983. It is apparent from para. 1 of the writ petition that the petitioner felt aggrieved by the ad interim order of the Senior Member of the N. I. R.
C. As, according to him it was per se in excess of the jurisdiction vested in him and violative of the manner in which he was required to exercise the limited jurisdiction available to him. In passing the impugned order he was also alleged to have violated the mandatory provisions of law.
5. The learned Single Judge, for the reasons stated in the judgment dated 30-10-1983, held that no interference was called for by this Court in case. The writ petition was accordingly dismissed with costs. The judgment is reported as Lever Brothers Pakistan Unwed v. Senior Member, National Industrial Relations Commission, Islamabad and another (1).
6. It may be observed that during the arguments in the case before the learned Single Judge the learned counsel for the parties agreed that the writ petition be confined to answering the limited legal question, namely, whether an ad interim order could be passed by the N. I. R. C. Under Regulation 32 (2) of the N. I. R. C. Regulations in the light of this Court's decision in the case of Hotel Intercont inental (2). It was further agreed by both sides that having answered th question the parties be left to argue their cases relating to interim relief before the Commission. The learned Single Judge distinguished the precedents cited before him on behalf of the appellant, The learned Single Judge, relying on the dictum of the Supreme Court in the case of Sind Employees' Social Security Institution (3) held 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 found it incidental or ancillary for effectively doing justice in the case and the
(1) 1984 PLC 115 (2) 1980 PLC 752(c) (3) PLD 1975 SC 32 circumstances of the case eminently justified it. It was further held that on the basis of the relevant provisions of the statute it appeared that there could 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 had not been committed, and a case, as the present, where the substantive case was one for punishment of an unfair labour practice already committed but where some further unfair labour practice was apprehended and for the prevention of which an application by way of further statutory relief under Regulation 32(2) was filed. According to the learned Single Judge, sub- regulation (2) of Regulation 32 of the N.
1. R. C. Regulations aptly covered both these eventualities. It was further held that the Commission had to deal with the main case under sections 25A, 34 or 53 of the Industrial Relations Ordinance and application for further statutory reliefs under clause (a) of sub-regulation (2) of Regulation 32 of the N. I. R. C. Regulations. The matter of further statutory reliefs would not be decided on affidavits alone, as in the case of matters like temporary injunctions but the relevant procedure, as stipulated by the statute, would have to be followed and the Union would have to submit itself to such an inquiry as the Commission may like to hold and to produce such evidence which it considers desirable in the said inquiry. This, however, did not mean that no interim order could be passed in such an application for further statutory relief if it was incidental and ancillary to the main jurisdiction under sub-regulation (2) of Regulation 32.
7. The appellant having met with no success before the learned Single Judge filed this intra-Court appeal.
8. Before the institution of this Intra-Court Appeal on 23-11-1983 it transpired from the record that the learned Senior Member, vide order, dated 22-11-1983 after hearing both the sides confirmed the ad interim stay order and also rejected the application moved by the appellant for the vacation of the stay order, dated 13-10-1983. This interim order of the Senior Member of N.
1. R. C. Has been challenged by way of Writ Petition No, 65 of 1984 which was admitted to a regular hearing by a learned Judge of this Court on 21-12-1983 and ordered to be heard together with the Intra-Court Appeal. We are disposing of both these connected matters through a consolidated judgment.
9. In respect of the Intra-Court Appeal, we do not feel called upon to come to the aid of the appellant in view of the dictum of the Supreme Court in the case of A. F. Ferguson & Co. v. The Sind Labour Court and another (1) In this precedent case the Supreme Court has enunciated the principle of law governing the exercise of the Constitutional jurisdiction of this Court. The weighty dicta of the Supreme Court may be reproduced here with advantage "It seems to us that all the points raised above by the parties did require adjudication and as some of them were disputed questions of fact they could only be decided by the Labour Court. Hence, this was a fit case in which all questions falling for determinati should have been' tried and determined in the first instance by the Labour Court itself. Respondent No, 2, indeed, did raise an objection to the effect than these circumstances, the Constitutional petition was not competent, but it was overruled and the
(I) PLD 1985 SC 429 constitutional petition was held to be maintainable on the view that the question involved was whether the Labour Court had not usurped jurisdiction in the case and that the said question was of wide public importance. It was, however, overlooked that in so holding its effect would be that while some questions stood determined by the High Court, others would still remain for decision by the Labour Court., our view, the Constitutional jurisdiction of the High Court hould not normally be exercised in cases where the entire case will not be completely disposed of. This Court and even the Privy Council has not favoured piecemeal and fragmentary decisions of causes ; see Abdur Rahman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21 ; Ibrahim v. Muhammad Hussain PLD 1975 SC 457 and Nanhelal and another v. Umrao Singh AIR 1931 P C 33."
10. There can be no denying the fact that in the present case th order which was assailed before the High Court was ad interim and purely tentative which was subject to result of cause being shown against it by the appellant. Aparjjrom this, only a limited question was agitated before the High Court while the main case as well as the fate of th miscellaneous application for grant of stay was still hanging in balance. Therefore, on the strength of dictum of the Supreme Court in the cite precedent, this Court ought to stay its hands in exercise of its Constitutional jurisdiction.
11. There is another salutary principle which ought not to be ignore that where an order passed by a Court or tribunal is subject to incidence of showing cause and raising of objections by the opposite side it Carrie with it the right to object to it including on the ground of jurisdiction o the tribunal. The decision rendered by the learned Single Judge proceeded on the basis of the consent and consensus between the parties as has been already noticed by us itt the narration part and is clear from the reading o the judgment of the learned Single Judge. The question raised, in the peculiar circumstances of the case, was thus of purely academic interest which exercise the superior Courts on principle and precedents avoid to undertake.
12. In the above circumstances, we are of the view that the ultimate order passed by the learned Single Judge in dismissing the writ petition is correct as interference would have resulted in fragmentary decisions since indisputably the entire case was not being completely disposed of.
We are, therefore, not obliged to examine the pleas against the soundness of the view expressed by the learned Single Judge in so far as they relate to the limited question argued before him. The result is that Intra-Court Appeal No, 244/83 fails and is hereby dismissed. There shall, however, be no order as to costs.
13. Now adverting to the disposal of Writ Petition No, 65 of 198 which has been filed against the interim order of the Senior Member of N. I. R. C., dated 22-11-1983, the consistent view of this Court is not to interfere with the interim orders. In our view the petitioner has been over-sensitive in rushing up to this Court against an interim order. This Court has even held in cases of remand which have been assailed before it in Constitutional jurisdiction that a remand not being a final order did not call for interference. We may here refer to the decision of this Court reported as Muhammad Bashir v. Allah Dad and another (1). This
(1) 1983 CLC 1309 decision was assailed before the Supreme Court by way of a petition for special leave to appeal which was dismissed. A reference may be made to the observations in para. 13 of this judgment which are as follows :- "13. There are other insurmountable hurdles standing in the way of the petitioners which, inter alia, are that this Court has never favoured interference with interim orders and even m cases of remand the view taken by this Court is that it not being a final order, no interference was to be made in exercise of the Constitutional jurisdiction. Reference may be made to the decision of this Court in Mst. Kaniz Fatima and 3 others v. Member (Revenue), Board of Revenue, Punjab, Lahore and S others PLD 1973 Lah. 495 ; Ramzan v. Rehabilitation Commissioner (Legal), Sargodha PLD 1963 Lah. 461 and Zainab Bibi etc. v. Abdullah etc. PLD 1979 Note 33 at page 21)."
14. In so far as the nature of the order impugned before us is concerned, there can be little dispute that it is an interim order. A perusal of the writ petition itself would show that the petitioner has described the impugned order as an interim order, vide ground (a) of the writ petition. There are no special features to be found calling for interference with an interim order in a matter which is pending before a Tribunal of special jurisdiction and which it is competent to entertain or deal with.
15. Despite the fact that we are of the opinion that on principle w would not like to interfere with interim orders and choke the Court wit litigation in matters pending before the Courts or tribunals below except in cases where writ of prohibition is prayed for total want of jurisdiction, we find that while passing the impugned order the learned Senior Member of N. I. R. C. Has relied upon the views expressed by the learned Single Judge while deciding Writ Petition No, 429 of 1983 which was subject-matter of the Intra-Court Appeal before us. In these somewhat peculiar of substances we have undertaken to examine the question in broader perspective so as to find out whether the order of the Senior Member of N. I. R. C. Was or was not one beyond the pale of his jurisdiction. The learned Single Judge on an examination of the provisions of the Industrial Relations Ordinance, 1969 and the N. I. R. C. (Procedure and Functions) Regulations, had come to the conclusion that in cases of extraordinary nature of immediate threat of occurrence of an unfair labour practice the Commission could have passed an ad interim and interim orders. Since the matter was argued before us in the two connected matters at length, we would like to briefly deal with the merits of the contention.
16. At the very outset, we notice that power to make regulations flows from the provisions of section 22-F of the Industrial Relations Ordinance, 1969. It is to be noticed from the language employed by the Legislature in this section under examination that the Commission is empowered with the prior approval of the Federal Government to make such regulations relating to its procedure and performance of its functions as it may deem fit and the regulations shall have effect notwithstanding anything inconsistent therewith contained in the Evidence Act (1 of 1872), the Code of Criminal Procedure, 189e and the Code of Civil Procedure, 1908 or any other law for the time being in force and subject only to the provisions of the said Ordinance. Its subsection (2) then lays down that in particular and without prejudice to the generality of the foregoing power such regulations may provide for all matters provided thereunder. Clause (e) thereof seems which reads as under :--- "(e) procedure for dealing with unfair labour practices." The vires of the Regulations have not been challenged before us.
17. Now, we would like to advert to regulation 32 which is the bone of contention before us. There is no dispute in so far as the provisions of sub-regulation 1 of Regulation 32 are concerned and in particular its proviso which reads as follows "Provided that the Commission while awarding punishment under section 53, may also direct the re-instatement of a worker and allow consequential benefits to him."
' A careful examination of-this provision makes it crystal clear to us that it deals with cases being tried by virtue of section 53 of the Industrial Relations Ordinance, 1969 for awarding sentences to persons guilty of unfair labour practice. It is in this context that the Commission while awarding punishment under section 53 has also been empowered as a consequential relief to order, in its discretion, re-instatement of a worker and allow consequential benefits to him. This stage had not yet reached in the facts and circumstances of the present case and thus is of no help for determining the controversy before us. We are perfectly clear in our mind mat regulation 32 (I) deals with a situation where an unfair labour practice has been committed and the case falls under section 25-A, section 34 or section 53 of the Industrial Relations Ordinance, 1969.
18. The main burden of the arguments of the learned counsel for the petitioner before us was that in terms of regulation 32(2), the Commission was not competent to award interim relief even where a case of unfair labour practice was likely to occur. We may here, with advantage, reproduce the provisions of the said sub-regulation :- "(2) Where a case of unfair labour practice likely to occur, the Commission may take the following measures, namely :-
(a) It may summon all or any of the persons connected with the case which is likely to occur, hereafter in this chapter referred to as the connected persons, hear them and hold such enquiry as it deems fit ;
(b) ascertain the factors which are likely to give rise to unfair labour practice ;
(c) advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice.
(d) reprimand or warn all or any of the connected persons that if they conduct themselves in an improper way it would be deemed to be in furtherance of the commission of an offence punishable under section 53, and
(e) initiate security proceedings in order to prevent the occurrence of an unfair labour practice."
' The opening words which would naturally control that which follows ought to be attended to with utmost care and attention. These are "where a case of unfair labour practice is likely to occur", the Commission may take the named measures. The use of word 'may' is of significant import and w hen read in the proper context with the whole scheme of regulation i32 it appears to have vested a discretion in the Commission to deal with the cases were unfair labour practice is likely to occur.
However. The steps and methods which are required to be normally followed have also been spelt out. On a combined reading of sub-regulation (2) and sub-regulation (3) of regulation 32, the position is placed beyond doubt that it deals with eventualities where any unfair labour practice is likely to occur. If that was not to be the position then the provisions of sub-regulation (3) would be rendered nugatory and surplusage. Its clear import is that where a person whom the Commission had reprimanded or warned under sub-regulation (2) commits an unfair labour practice. The Commission may consider, for the purpose of awarding punishment under section 53, the reprimand or warning as a circumstance aggravating th offence. It follows that a direction issued in terms of clause (d) of sub regulation (2) of regulation 32 must have preceded the commission of an unfair labour practice and in spite of it if tne unfair labour practice likely to occur was committed, only then it would be open for the Commission to construe it as a circumstance aggravating the offence.
' In the context of the present case, clause (r) of regulation 32(2) appears to be most apt and relevant. It clothes the Commission in a case where unfair labour practice is likely to occur, with powers to advise, direct or prohibit all or any of the connected persons to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated to avoid occurrence of unfair labour practice. There thus exists a clear distinction between unfair labour practices which have already been committed and those which are likely to occur, of course, in future. The mere fact that an action is pending in respect of the former category,/ cannot be construed as a clog on the powers of the Commission to prevent or stop unfair labour practices likely to occur. We are not minded to construe the law in a manner as would tantamount to granting a licence to a person facing proceedings for having committed an unfair labour practice, to be tree to do .Such acts and deeds whereby unfair labour practice is likely to occur. It does not appear to be the intention of law to render the Commission powerless in this behalf and countenance such: acts as an on-looker.
' The scheme of regulation 32 (2) appears by its very nature to preventive. The very purpose of the legislation, in our view, would stand bed defeated if the procedure was to be construed as an insurmountable hurdle in the way of achieving the very purpose of the law. The matter has to be decided in the peculiars facts and circumstances of each case and it does not seem desirable to lay down a broad and general proposition. In the prerent case, the petitioner did appear before the learned Senior Member of the Commission and they were heard. It is thereafter that the learned L Senior Member directed and prohibited them to do or refrain from doing any act or to conduct themselves or their affairs in a manner calculated t avoid occurrence of unfair labour practice.
' The further question whether in the given facts and circumstances of this case unfair labour practice was likely to occur is one of fact. It is true that in the proceedings before the learned Senior Member of N. I. R. C.. These factual matters became disputed questions of fact. There is ample Case-law to the effect that this Court ordinarily would not undertake the resolution of disputed questions of fact in exercise of its Constitutional jurisdiction. We find no compulsive or extraordinary circumstances to adopt a contrary course in this case. It is enough for the purpose of disposal of this writ petition that the Industrial Relations Commission has the jurisdiction to deal with cases where unfair labour practice is likely to occur. The jurisdictional fact, therefore, is found to exist.
21. The further question as to the propriety of the impugned interim order or its correctness or otherwise, in our view, ought not to be enter tamed by us. We would in this behalf wish to rely on the enunciation of law made by the Supreme Court of Pakistan in the case of Abdul Rehman Bajwa v, Sultan and 9 others (1) in the following terms : "11. The question of jurisdiction of the High Courts under Article 199 has come under consideration in a number of cases before this Court and it has repeatedly held that if a Court or Tribunal set up under the ordinary law has the jurisdiction to decide a particular matter then there is jurisdiction to decide it rightly or wrongly or and the fact that the decision is incorrect, or is not one at which the High Court would have arrived, does not render the decision without jurisdiction."
' In this very case, the Supreme Court has further relied with approval on its earlier decisions which are as follows :- Badrul Haque, Khan v. The Election Tribunal, Dacca PLD 1963 SC 704 ; Rounaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 ; Rahim Shah v. Chief Election Commissioner PLD 1973 SC 24 ; Muhammad Hussain Munir v. Sikandar PLD 1974 SC 139 ; Zulfiqar Khan Awan v. Secretary, Industries and Mineral Development, Government of Punjab, Lahore and 8 others 1974 SCMR 530 and Begum Wazir Ahmad Industrial Home v. Niaz Begum PLD 1976 SC 214.
The Supreme Court in its latest pronouncement, in the case of Noor Muhammad v. Sarwar Khan and 2 others (2) while citing with approval the earlier decision referred to above, has been pleased to observe that there was an increasing tendency to file Constitutional petitions even when the Courts whose orders are challenged had the jurisdiction to pass those orders, notwithstanding the fact that it had been held time and again that where a Court (in contradistinction to a persona designata) has jurisdiction to decide a matter, it can do so rightly or wrongly and the mere fact that the decision on a question of fact or law is not correct, does not necessarily render it 'without lawful authority' and certainly not illegal.
22. For the reasons stated, we do not consider this to be a fit case for interference in exercise of our discretionary Constitutional jurisdiction.p The result is that Writ Petition No, 65 of 1984 fails and is hereby dismissed. In the circumstances of the case, however, there shall be no order as to costs.
Writ .
(1) PLD 1981 S lbC 522 (2) PLD 1985 SC 131