This appeal has been heard under subsection (4) of section 22B of IRO, 1969 in the absence of Mr. Ashraf Ali, Joint Secretary Labour, who was out of country.
2. The appeal calls in question the confirmation of stay decided by a learned Single Bench of this Commission. The facts briefly are that 11 workers including the 7 respondents in this appeal, filed a petition under section 22A(8)(g) read with sections 22B(3), 15 and 25-A of the IRO, 1969 challenging the disciplinary action initiated against them by the Management who had served them with charge sheets asking them to show cause against alleged acts of misconduct. They prayed in the petition that the Management be restrained from committing any act of unfair labour practice and be directed not to terminate their services or take any action against them in pursuance of the charge sheets. The petition was registered as No.7(48)/85.
3. They also moved an application under regulation 32 of the NIRC (Procedure & Functions)
Regulations, 1973, praying for a direction to the Management not to "pass any final order in regard to the above noted charge sheets till final disposal of the main petition"
On this Misc. Application (No. 24(80)/85) an ad-interim order was passed on 3-4-1985 directing the Management and all or any of the connected persons "not to commit any unfair labour practice and more particularly not to take any final action or pass any final order in regard to the charge sheets issued to the workers--------". After hearing the parties, the said order dated 3-4- 1985 was confirmed by the impugned order dated 12-9-1985, except in the case of two of them namely, Robina Jamil and Hanifa Bibi (not parties in this appeal) as they had already been removed from service.
4. Objection to the grant of relief had been raised by the Management on the grounds firstly that no complaint had been filed and without that the relief asked for could not be allowed and secondly that no grievance notice, required under section 25-A, had been given. The objection was repelled upon the view that the Misc. Application under Regulation 32 was "an independent petition in its right and word "and" occurring in section 22A(8)(g) is disjunctive in nature" and that as such there was neither need for a criminal complaint to have been filed nor did the application flow from any petition or redress of individual grievances. On merits, the learned Bench did express "I have however no evidence before me to determine whether an unfair labour practice was likely to be committed or not". Nevertheless, the consideration which prevailed with him in granting the relief was that if the stay application was not granted, the Management would get whole relief without going into evidence which militated against the rule that interim relief should not grant total relief. For this reliance was placed on a case from Indian Jurisdiction. The learned Member also took into consideration the balance of inconvenience which guided him to the confirmation of ad-interim relief.
5. The appeal could be disposed of simply on the ground that n prima facie case having been shown to exist, the learned Member could not proceed to grant the relief. In fact Mr. Asmat Kamal Khan who appeared for the respondent workers conceded that after finding that a prima facie case did not exist, the grant of a temporary injunction would not be warranted.
6. However, we find that certain legal assumptions have been made which require to be straightened out. It would not be correct either on the facts of the case or law to say that the application under regulation 32 was an independent cause. The respondents and other workers had in fact moved a petition under section 22A(8)(g) read with sections 22-B(3), 15 and 25-A of the IRO, 1969, as already mentioned, in which they had challenged the charge-sheets served by the Management and sought an order restraining the Management from proceeding on the basis of the charge-sheets. Neither the title nor the content of the application shows that it was meant to be an independent cause. In the very beginning of the application, mention of the main petition had been made and in the prayer clause relied had been asked for "till final disposal of the main petition". The learned Member not only noticed this aspect of the prayer, in the impugned order, but also confirmed the ad-interim order "till the final decision of the main petition...". To say, therefore, that the application under Regulation 32 was independent, would not be in keeping with the facts of the case. It was an application made in the main petition filed under section 22-A(8)(g) and had been so intended by the workers. As regards the legal position, sub-regulation (2) of Regulation 32 under which a preventive order is sought, does begin with the words "Where a case of unfair labour practice is likely to occur------.". There has to be, therefore, a case of likely unfair labour practice, and without such case the provision of Regulation 32(2) could not be invoked. It is, therefore, incumbent upon a part which moves an application under regulation 32(2) to bring up a case of unfair labour practice likely to occur. The workers had done so by moving the main petition u/ss 22A(8)(g) etc. The application under regulation 32 was, therefore, only a miscellaneous application in the main case for interim relief till disposal of the main petition.
7. The question of grant of relief partly or wholly, is entirely in relation to the party which is seeking the relief and not to the other party. It is the seeking party which has to establish the legal basis for the relief and upon its failure to do so, it will be denied the relief. Relief cannot be granted to a party seeking it merely upon consideration that if such relief be denied, it will amount to granting relief to the defending party. Since this latter party is not seeking relief, the question of grant of any relief to it does not arise. The ruling of the Indian Court , as rightly pointed out in the memorandum of appeal, has been misread.
8.e For these reasons the appeal is accepted and the impugned order is set aside.