M.S.H. QURAISHI (CHAIRMAN).--A question that has arisen for determination in this appeal is of its maintainability, the appeal being directed against interlocutory order rejecting objections to allowing the conversion of a complaint into a civil petition under section 25-A of the Industrial Relations Ordinance, 1969 and to the maintainability of the petition of the grounds of limitation and non-impleadment of proper parties.
2. The right of appeal is governed by the provision of subsection (1) of section 22-D of the Industrial Relations Ordinance, 1969 which reads:- 22-D Appeals
(1) Notwithstanding anything contained in this Ordinance, or in any other law for the time being in force, any person aggrieved by an award or decision given or a sentence or order determining and certifying a collective bargaining unit passed by any Bench of the Commission other than a Full Bench, may, within thirty days of such award, decision or sentence or order, prefer an appeal to the Commission-.
3. The subject-matter of appeal can therefore, be (1) an Award, (2) a decision, (3) a sentence or (4) an order determining an certifying a Collective Bargaining Unit (CBU). Mr. Asghar Malik, appearing for the appellant submitted that all the four subject-matter of appeal in subsection (1) of Section 22-D are independent of each other, and for this reason, while interpreting the term "decision", the rule of 'ejusdem generis' will not be attracted. He, therefore, urged that the term "decision" which is applicable to all proceedings other than those culminating in an Award, a Sentence, or an order determining and certifying a CBU, need not be restricted to the final disposal of the case but should be interpreted to cover every final disposal of a controversy material to the case. According to him the term "decision" was were enough to include every determination of a disputed matter whether of fact or of law and was not intended to be restricted to the final disposal of the entire case itself.
In this connection, he submitted that where the law had intended to restrict the scope of appeal to the final disposal of the entire matter, it would expressly say so as has been done in section 3 of the Law Reforms Ordinance, 1972. He thus canvassed that every determination of a controversy material to the case, not necessarily being the final disposal of the case itself, was to be treated as a "decision" and thus appealable under section 22-D(1) of the IRO, 1969.
4. The word "decision" is not defined in the Industrial Relations Ordinance, 1969. According to the Shorter Oxford Dictionary, it means "the action of deciding (a contest, question, etc.), a settlement, determination or conclusion or judgment". The term decision is defined in Ballentine's Law Dictionary to mean "report of a conclusion reached, especially conclusion of a Court in the adjudication of a case or the conclusion reached in an arbitration; an adjudication by the Court without formulating the result of a judgment; sometimes synonymous with judgment; the application, by a Court of competent jurisdiction, of the law to a state of facts proved, or admitted to be true, and a declaration of the consequences which follow." According to Black's Law Dictionary, it means "a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it". According to Saunders' "Words & Phrases" Vol.2, "decision" implies the exercise of a judicial determination as the final and definite result of examining a question". While interpreting the term "decision" in Islamic Republic of Pakistan v. Abdul Wali Khan PLD 1976 SC 57, the Supreme Court held that:- "In the technical judicial terminology the word 'decision' may connote a determination of judicial nature as a judgment or decree pronounced by a Court in settlement of a controversy submitted to it and by way of authoritative answer to the questions raised before it (vide Black's Law Dictionary), yet it is a comprehensive term having no fixed legal meaning and may equally well be employed as referring even to ministerial acts, but when read in conjunction with the word 'matter', which Black's Law Dictionary defines 'as the subject-matter of controversy' or substantial facts forming the basis of a claim or defence, then it becomes the subject of litigation, that is to say, the 'lis' itself."
A useful commentary on the meaning of the word "decision" is to be found in Corpus Juris Secundum, as reproduced below:- "A popular and not a technical or legal word, and a very comprehensive term, having no fixed, legal meaning. It has been said that a decision necessarily involves a dispute, actualor potential, and the reaching of a conclusion .... In its common use, the word has been defined as meaning act of deciding, settling, or terminating, as a controversy, by giving judgment on the matter at issue; determination or result arrived at after due consideration, as of a question or doubt; settlement, or conclusion. Strictly speaking, it is intended to embrace the last act of the Court, in other words, the judgment, a decision of the case for or against one of the parties, and, as used in particular statutes, may mean of final decision, and in its broad, generic sense it means a final determination of the rights of the parties in the action." (Vol.26 pp.41 & 42).
5. The question, therefore, is whether the term "decision" used in section 22-D(1) is to be interpreted in a wider sense so as to include interlocutory orders as is urged before us. A finality has been attached to a decision of the Commission by Section 22-E which lays down that " ....No order, decision, judgment or sentence of the Commission shall be called in question in any manner whatsoever, in or before any Court or other authority." Since there is no provision for review or revision against the order of a Single Bench, Section 22-D(1) is the only provision available in the nature of Intra-Court Appeal built in for the purpose of correction of such orders within the Commission itself before it can be clothed with the finality conferred by Section 22-E. While therefore, a very strict interpretation of the word "decision" so as to exclude every order whatsoever except the final one, whereby the entire case stands disposed of, may not accord with the scheme of the law, it will not mean that the word decision must be given its widest possible scope so as to cover each and every decision of any controversy, whatsoever, arising in the conduct of the proceedings. In the first instance, it will not accord with the scheme of the law itself which does not permit appeal from interlocutory orders in proceedings culminating in Award, Sentence or Order determining the certifying a CBU. It does not come to reason that while in those proceedings the scope of appeal is to be so restricted, in other matters every decision taken in the course of the proceedings is open to appeal. It is to be seen that certain matters such as a case of unfair labour practice can be tried also by a Labour Court and if it is so done, an appeal against the Labour Court 's decision will be regulated by Sections 37(3), and 38(3) of IRO, 1969 which do not contemplate appeal from an interlocutory decision. It is difficult to accept that where a Labour Court tries a case which also falls within the jurisdiction of the Commission, there will be no appeal except as specified in subsection (3) of Sections 37 and 38, but if a Single Bench of the Commission, tries the case, then every decision which the Bench makes even during the pendency of the proceeding, will become appealable. Such different treatment cannot be conceived. This aspect of the matter was considered by a Full Bench of this Commission while examining the appealability of a judgment of acquittal in Ch. Ghulam Hussain v. Alexander Fernandez, Managing Director, Bata Shoe Co. (Pak.)
Ltd. 1980 PLC 1191, and it was held that "One of the basic principles which has been enshrined in our Constitution, is that all persons placed in similar situations will be equally treated under the law.
Another principle is that laws are not invidiously administered to the detriment of individuals. They are for universal application".
6. In regard to the appealability of interlocutory decisions, we may refer to the following commentary in Corpus Juris Secundum:- "It is the general rule, therefore, that an appeal, writ of error, exceptions, or other proceeding for review will not lie from or to an interlocutory or intermediate decision unless it is expressly permitted by statute rule, or constitutional provision ------.The policy' behind, or the ground for, the statutes, rules of Court, and decisions embodying this principle is that litigation should not proceed piece-meal, that intermediate appeals would unduly delay the final disposition of litigation, and that a complete disposition of the matter in the trial Court may make an appeal moot" (Vo1.4 pp.238,244)
"Except where it is otherwise provided by statute, ` an order, judgment, or decree must possess the essential characteristic; of finality in order that an appeal may lie therefrom. What is a final judgment, with respect to review, has been said to be a question for the Courts rather than the legislature ......Ordinarily, a judgment, order, or decree which determines the merits of the controversy, or the rights of the parties and leaves nothing for future determination or consideration, is final and appealable, and it is not final or appealable unless it does these things.
The test of finality of a judgment or decree to support an appeal is not whether the cause remains in fieri awaiting further proceedings in such Court to entitle the parties to their acquired rights, but whether such judgment or decree ascertains and declares such rights embracing the substantial merits of the controversy and material issues litigate or necessarily involved in the litigation; the test has also been held to be whether .The judicial labour is at an end. (Vo1.4, pp.252 to 254).
On the same subject, we have the following commentary in the America Jurisprudence:- "It is a general principle now quite uniformly adopted in the statute law that only judicial decisions final in their nature and rendered by s tribunal clothed with judicial power are reviewable on appeal or error proceedings". (Vol. 2 p.856)
"At common law error lies only form a final judgment. This general requirement of finality has been carried into the statute; regulating review proceedings; and it may be stated generally that a judgment, decree or order, to be appealable, must be final or in the nature of a final decision. Such an order may be appealed from without regard to any, power which the Court may possess to vacate it during the term at which it is made.
An interlocutory order or judgment, on the other hand is not reviewable either by appeal or writ of error unless some statute, expressly authorizes it."
".. . . . .. A Judgment, order, or decree to be final for purpose; of an appeal or error, must dispose of the cause, or a distinct branch thereof, as to all the parties, reserving no further questions or directions for future determination. It must finally dispose of the whole subject-matter or be a termination of the particular proceedings or action, leaving nothing to be done but to enforce by execution what has been determined. In other words, a final judgment is one which operates to divest some right in such a manner as to put it beyond the power of the Court making the order to place the parties in their original condition after the expiration of the term; that is, it must put the case out of Court, and must be final in all matters within the pleadings." (Vo1.2 pp.858-862)
"A judgment must be final and not interlocutory, to support the maintenance of an action thereon."
(Vo1.31 p.329)
And according to Halsbury's Laws of England, "Generally speaking, an appeal from a final judgment of a judge lies to the Court of Appeal without leave, but, with certain exceptions, no appeal lies from an interlocutory judgment or order of a judge without the leave to the Judge or of the Court of Appeal." (Vol.26 pp.240,241).
7. An analogy can be found from the interpretation of the word "Order" occurring in Section 15 of the W.P. Rent Restriction Ordinance. The Section, as then enacted, permitted an appeal from an "Order" passed by the Rent Controller. The term was not defined in the Ordinance, but the Supreme Court, first, in Kandawala's case 1969 SCMR 720, then in Ibrahim v. Muhammad Hussain PLD 1975 SC 457 and again in Mian Manzar Bashir and others v. M.M. Asghar & Co. PLD 1978 SC 185 has restricted the meaning of the word "Order" so as to exclude findings on preliminary issues and incidental, collateral, interlocutory or provisional orders passed by the Rent Controller in the proceeding.
Support for excluding interlocutory orders from the scope of appeal can also be found from the following observation of the then Chairman of the Commission in Full Bench judgment in Capt.
Retd. Abdul Wajid and 2 others v. Sher Muhammad and others 1980 PLC 800u at page 800gg):- "I feel that the final disposal of the matter by a Bench would be a decision and this interpretation according to me is more convenient and feasible for the purposes of a Judicial Institution where there is a right of Intra-Court Appeal."
"The Intra-Court appeal generally is grounded on the principle that where-ever a final disposal of the matter has been made a Larger Bench may hear an appeal."
8. The general rule, therefore, is to deny appealability to inter--locutory orders. Even otherwise, the word "decision", considering the company in which it sits, is not capable of a were interpretation so as to include every interlocutory order passed during the continuance of the proceedings. A more restricted meaning is obviously indicated.
9. It has also to be noted that the Industrial Relations Ordinance is by no means a law meant to involve the worker in prolonged and interminable litigation. It is a special law meant for regulation of relations between employers and workers and for the avoidance and settlement of any differences or disputes arising between them. A appeal from interlocutory orders is bound to block the progress o the main case, increase the pendency of cases in the Commission an delay their disposal, which will thus detract from the very policy and purpose of the law.
10. It does not, however, mean that a party against whom an interlocutory order is made is left without a remedy. His remedy is only postponed and he can include in the challenge all such orders and when he becomes entitled to file an appeal under the law.
11. The grant or refusal of a temporary injunction during then pendency of the proceeding is, no doubt, also an interlocutory order, but the same is distinguishable in the sense that an injunction even though of a temporary nature, partakes of the final relief sought in the proceeding. It involves the very substance of the relief for which the party has instituted the lis. The benefit of interim relief if granted or the loss if refused has to continue in the absence of an appeal until the final disposal of the case. The grant or refusal of unwarranted or undeserved will cause a grave failure of justice, inasmuch as, the party which obtains the relief will be able to continue its enjoyment uninterrupted until the final result: similarly the party which even though entitled has been denied the relief, will have to go without it until the end of the proceeding. The appealability of such orders has been commented in American Jurisprudence (Vol. Page 925) in the following words:-- "The granting or refusing of an injunction pendente lite or of an order made on a motion to dissolve an injunction, which does not otherwise dispose of the case, is also an interlocutory decree and not appealable. But such an order has been held a final order in a special proceeding which may be reviewed upon a writ of error under some statutes." and then, "The granting of an interlocutory injunction, however, is also considered as having the elements of finality so as to make the order reviewable on appeal."
It has also to be seen that unlike other interlocutory orders, an order granting or refusing interim relief will no longer remain open for challenge in the appeal that may be brought against the final disposal of the case, because such order merges in the final order and will thus cease to be a point in controversy in the appeal. I will be relevant to notice also the fact that appeal lies under Section 22-D(1) against an interim award as the same comes within the definition of the term award.
Orders granting or refusing interim relief, therefore, form a distinct category and will in my view constitute decision within the meaning of Section 22-D(1) for the purpose of their appealability.
12. From all these considerations, I feel confirmed in the vie that Section 22-D(1) does not contemplate appeals from interlocutor orders whereby preliminary incidental or collateral issues are decided. The present appeal being directed against an order deciding preliminary issues is, therefore, not maintainable and is accordingly dismissed.
A.A. 96/Lb. I.R.C.