' MAHMOQD AKHTER, SENIOR MEMBER.---This appeal seeks to assail order dated 4-10-1989 passed by learned Member Lahore. The brief facts leading to this appeal arc that the respondent was transferred from Magazine Section of Daily Jang Lahore to Reception Section as Clerk vide order dated 31-5-1989. She moved a petition under section 22-A (8)(g) of I.R.O., 1969 alongwith an application under Regulation 32(2) N.I.R.C. (P&F) Regulations, 1973 before learned Member Lahore.
He directed the issuance of notice and suspension of transfer order dated 31-5-1989 besides her continuance in the Magazine Section. Written statement and reply were filed in respect of the main petition and the stay application. The learned Member, citing the decisions of the Full Bench in Appeals Nos. 12 (48)/88 and 12 (49)/88 and 12(49)/89 ordered on 29-8-1989 that arguments shall be heard on the stay application after giving a chance to the parties to adduce evidence. The case was then put to 10-9-1989 for evidence and if possible arguments of parties. On 29-9-1989 the statement of respondent was in progress when the case was adjourned to 2-10-1989 for cross- examination. The statement of respondent was completed on 2-10-1989, when her counsel requested to produce two more witnesses and the case was adjourned to 4-10-1989. On that day (4-10-1989) the counsel for the present appellant objected the recording of evidence on the ground that it would prolong the stay matter. He urged that only the parties be examined who may tender documents in the statements; their arguments be heard and the stay application be decided without going deep into it. This objection was ruled out by the learned Single Bench who again observed on 4-10-1989 as follows:-- " This Bench is bound by the observations made by the honourable Full Bench, while disposing Appeals Nos. 12 (48)/88, 12(49)188 and 12(49)/89 according to which a fair chance to adduce evidence is to be given to both the parties even in the disposal of an application under Regulation 32(2) of the N.I.R.C. (P&F) Regulations, 1973."
2. We have heard the arguments of the parties and perused the record.
3. As already stated the learned Member ordered on 29-8-1989 that the arguments be addressed by both sides, on the stay application "after giving the parties a chance to adduce evidence in support of their respective contentions as held by the honourable Full Bench in Appeal No, 12(48)/88 12(49)/88 and 12(49)/89 " Thus, the cause of action arose on 29-8-1989. The present appeal was filed on 7-10-1989. Section 22-D of the I.R.O., 1969 provides that:- "22-D. Appeals.---(1)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...."
4. This appeal is therefore barred by limitation as the prescribed period of 30 days for filing this appeal has expired.
5. Further this appeal seeks to assail an interlocutory order. According to section 22-D (ibid) an appeal is maintainable against an award, decision, sentence or order for determining a C.B.U. The impugned order is obviously neither an award nor sentence nor an order determining a C.B.U. The impugned order could only be termed a 'decision'. Word "decision" is not defined in the I.R.O, 1969.
However, it has been used in section 22-D of the I.R.O., as cited above in the company of the words 'an award or a sentence or order determining and certifying a collective bargaining unit".
According to the principle of interpretation generally called "Noseitur a sociis" namely, that the meaning of a word or expression may be gathered from the surrounding words, that is, from the context, it could only be concluded that the word "decision" would not include every interlocutory order passed during the continuance of a proceeding. Ballentine's Law Dictionary defines word 'decision' to mean "report of a conclusion reached, especially the conclusion of a Court in the adjudication of a case or the conclusion reached in an arbitration. Pierre Water Works Co. v. Huges County, 5 D.K 145, 163 37 NW 733". According to Black's Law Dictionary it means "a judgment or decree announced 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 Saunder's "Words and Phrases Vol. II" "decision" implies "the exercise of a judicial determination and the final and definite result of examining a question".
' Honourable Supreme Court interpreted word "decision' in the case of Islamic Republic of Pakistan v. Abdul Wali Khan (PLD 1976 SC 57) as follows:-- "In the technical judicial terminology the word 'decision' may connote a determination of judical 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 Balck'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."
6. A Full Bench of this Commission considered the question of appeal ability of interlocutory decisions in the case of Project Manager, Doaba Rice Mill Ltd. v. Khalid Mahmood Hassan (1987 PLC 705). Mr. Justice M.S.H. Quraishi delivering the judgment on behalf of the Full Bench after considering a number of cases such as PLD 1976 SC 57. 1980 PLC 1191, 1969 SCMR 720, PLD 1975 SC 457; PLD 1978 SC 185 and 1980 PLC 800 (u) and 800(gg) and the definitions of the word 'decision' in Shorter Oxford Dictionary, Ballentine Law Dictionary, and the Commentaries in Corpus Juris Secondum, and American Jurisprudence and Halsbury's Laws of England arrived at the conclusion that word 'decision' would include a pre-adjudication by the Court pendente-lite though same would also be synonymous with the final judgment itself. Word `decision' as used in section 22-D in the Industrial Relations Ordinance 1969 was not capable of a wider interpretation so as to include every interlocutory order passed during the continuance of proceedings. He, therefore, concluded that section 22-D(1) does not contemplate appeals from interlocutory orders whereby preliminary, incidental or collateral issues are decided. This Full Bench also agrees with and approves the said interpretation of word 'decision'.
7. However, Since the learned Member has referred to the dictum of the earlier Full Benches in Appeals Nos. 12(48)/88, 12(49)/88 and 12(49)/89 in the impugned order it has therefore become necessary for us to clarify the manner of dealing with cases under Regulation 32(2) the N.I.R.0 (P&F)
Regulations, 1973.
8. In Appeal No, 12(48)/88 the appellant had assailed the decision of the learned Single Member because while the appellant pleaded that he was, in fact only an establishment clerk, shown by the Lahore Municipal Corporation to have been posted in the tax collection branch, and was liable to be transferred to any branch, the learned Member came to the conclusion, without taking any evidence, that the appellant was employed in the Tax Collecting Branch of the Lahore Municipal Corporation and was thus not entitled to protection of I.R.O., 1969. These being issues of facts needed evidence. In any case the main petition ought not to have been dismissed without recording the evidence on points of controversy. In Appeal No,12(49)/88 both the stay application as well as the main petition of Muhammad Shoab were dismissed because he was a Tax Collector.
In the appeal the appellant came up with a certified copy of his duties by Superintendent Zone No, 6 of that Corporation certifying his duties to be collection of fees besides collection of Corporation tax and Cinema tax etc. He urged that even those taxes were misnamed and were in fact the fees for services provided. He urged that 'fee' is different from 'tax'. In this case the learned Single Bench neither recorded evidence nor decided the controversy. This case as well as previous cases were dismissed by the learned Single Bench when the same were fixed for arguments on stay application. The very order in each case began with the words to the effect that the said order shall dispose of the stay application, while it ended with dismissing the main petition as well. In Appeal No, 12(49)/89 which arose from the transfer of Muhammad Akram Bhatti, the learned Single Bench first of all granted ad interim relief by way of stay order, however, when the same was fixed for confirmation or otherwise, not only the stay application was dismissed but the main petition was also dismissed because the learned Member came to the conclusion, (and that too without taking any evidence) that no case of unfair labour practice had been made out. All these appeals were remanded to the learned Single Bench for decision after taking evidence because the main petitions had also been dismissed without recording any evidence while controversial questions of facts had been raised. The order of the Full Bench in these appeals nowhere required that the party should be given" a fair chance to adduce evidence in support of their contention when the stay application is being heard. On the other hand we would require that where the parties contend an issue on facts before the learned Single Member in a main petition the same should be decided on the basis of evidence and not otherwise.
9. As for the stay applications for the apprehended acts of unfair labour practices we would; like to clarify that N.I.R.C. Being a Tribunal created by the I.R.O., 1969 has a special procedure for dealing with unfair labour practices which are likely to occur. This special procedure is specified in Regulation 32(2) of the N.I.R.C. (Procedure and Functions) Regulations 1973 which is reproduced below:-- "32. Manner of dealing with unfair labour practices:-- (1)........
(2) Where a case of unfair labour prectice is 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 practices; (c)......................... (d)
(e)..............................
' The use of word 'ascertain' shows that this process is different from adjudication. Therefore, the normal process of adjudication namely adducing evidence, cross-examination of witnesses etc. Does not form part of it. Word `ascertain' according to Shorter Oxford Dictionary means: " To make ( a person) certain; to assure; losely, to inform, apprise To make oneself certain. To make (a thing) certain to the mind; to establish as a certainty. To find out or learn for a certainty ; to make sure of, get to know. To ensure, secure (to a person). To bring or deliver certainty, destine or doom(a person). To make (a thing) certain, or definite: to decide, fix limit Some effectual method for correcting, enlarging, and ascertaining our language SWIFT "
' According to Chambers 20th Century Dictionary it means: "to apprise: to assure: to make certain: to prove: to find out for certain: to insure, prove."
Stroud's Judicial Dictionary does not give the meanings of word "ascertain" but does give the meanings of word "ascertained" which are as follows: "Ascertained.(1) This word has two meanings. (1) 'Known,' (2) 'made certain' (Sidebottom v.
Sidebottom, L.R. 2 P. & D. 365). In that case, as used in a residuary clause, it was construed 'made certain.'
(2) Where money to be paid, or service to be rendered, has 'to be ascertained' in a certain way, 'the words 'to be ascertained' are very strong words, and they look very like a condition precedent" (per Crompton J.. Braunstein v. Accidental Insurance, 31 L.J.Q.B. 24),
(3) "Not ascertained"
(4) "Previously ascertained"
(5) "Ascertained goods,"
(6) "Ascertained value"
(7) "Ascertained residue,"........ "
Ballantine's Law Dictionary gives the meanings of word 'ascertain' as follows: "To make certain; to fix; to establish with certainty; to establish that is by the finding and judgment or decree of the Court, See Globe Publishing Co. v State Bank of Nebraska, 41 Neb 175. 59 N W 683."
10. Thus, whether this word is used in common parlance or whether we refer to its legal usage, it has never been understood and treated at par with adjudication. Consequently the process of adjudication will not be pressed into service as process of ascertainment. The provision of Regulation 32(2) (ibid) came up for authoritative interpretation in the case of Hotel. Inter- Continental reported as 1980 PLC 752 Mr. Gul Muhammad Khan, J. Laid down the scope of Regulation 32(2) (ibid) and observed as follows: "The next step is to find the scope of Regulation 32(2). The relevant text reproduced in para 11 above would show that there is a complete procedure given and the relief specified. Clauses (a) and (b) lay down that an inquiry or hearing be held in the presence of both the parties to ascertain the factors giving rise to the unfair labour practice. It is thereafter that the National Industrial Relations Commission has to ascertain, direct or prohibit the doing of any act in order to avoid occurrence of any unfair labour practice. Clauses (d) and (e) also provide measures calculated to check recurrence of it. In this view of the matter, no relief interim or otherwise can be provided by the National Industrial Relations Commission without first resorting to steps laid down in the clauses
(a) to (c)."
11. In 1984 in the case of Lever Brothers (Pakistan) Limited v. N I R C, 1984 PLC 115 Mr. Rustam S. Sidhwa, J. Observed as follows: "...I would not like to give any opinion on these submission, 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 (h) of sub-regulation (2) of Regulation 32. Then I do not see any reason why it should not have the author' y to grant interim relief, as stated in or akin to clauses (c) to (e) of the same subregulation...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 Supereme Court in the case of the Sindh Employees Social Security Institution PLD 1975 SC 32 was not pointed out to the Court in the Hotel Inter-Continental's case.."
12. It is thus clear that the learned Member had to proceed on the basis of the material before him, namely, the affidavits, the contentions of the parties in the pleadings and other material on record before him and he could further, if he felt it proper, ascertain the facts by calling in one or two such knowledgeable persons and record their statements who could have deposed before him with some authority as to the factors likely to give rise to the apprehended unfair labour practice. Full scale evidence in any case did not have to be recorded prior to grant of temporary injunctions. If a prima facie case is not made out unless evidence is recorded, the Court should refrain from granting temporary injunction as held by the honourable Supreme Court in the case of Mashkoor Khan and others v. Province of Sindh (1971 SCMR 572). Further, the principles of C.P.C. And the Specific Relief Act concerning temporary injunctions are considered to be mutatis mutandis extended to the situation envisaged by Regulation 32(2) of the N.I.R.C. (P & F) Regulations 1973. The C.P.C. (Order 39, Rules 1 and 2) envisages that an applicant has to satisfy a Court that he has prima facie case. Anything less than that would disentitle him for interlocutory injunction in his favour as held in the case of Feroze Din v. Abdul Hamid and others (PLD 1969 Lahore 89), where Muhammad Gul, J., observed- "....It is true that the learned Judge made certain observations touching merits of the case, but that was incidental to the disposal of the appeals before him. It is well-established principle that a petitioner, for the grant of interlocutory injunction has to satisfy the Court that he has prima facie case. If he has failed to do that and injunction is refused it will still be open to hith to adduce evidence to the contrary to establish his case on merits for the main relief in the suit
13. Similarly under Regulation 32(2) (ibid) also the Commission contents itself with nothing less.
Thus if the case before the learned Member was not a F prima facie case and he needed evidence to establish a prima facie case, then he ought to have refused the prayer for interim relief.
14. In short, in the matter of granting interim relief a Single Bench is to proceed on the basis of the material before it, namely, the affidavits, the contentions of the parties in the pleadings and other material on record before it. If the learned Bench still needs some clarification or the said material needs to be supplemented on some minor matter he may further make very brief and discreet inquiries by recording statement of some knowledgeable person or by calling in one or two concerned persons at the most and make such discreet ascertainment of facts as it considers fit for disposal of the interim relief application as envisaged in regulation 32(2) (ibid).
15. With these observations and for reasons that the instant appeal is not maintainable, firstly, because it is barred by time and secondly, because it is directed against an interlocutory order