1. MUHAMMAD YAQUB ALI, C. J.-This appeal is directed against an interim order passed by a learned Judge of the Sind & Baluchistan High Court in Civil Miscellaneous Applications Nos. 973 and 1003 of 1972 on 29-11-1972 whereby the application moved by the Sui Gas Transmission Co. Ltd., the plaintiff-appellant herein, for an interim injunction to restrain the 15 defendants in the suit, from becoming members of the Sui Gas Employee' Union, was rejected.
2. Leave to appeal was granted on 18-12-1972 to consider the plea that the learned Judge in the High Court hail in refusing to grant temporary injunction, not taken into account the fact that the whereas the enrolment of Junior Executives, as members of the Workers' Union can create serious deadlocks for the smooth operations of the plaintiff-Company, causing irreparable injury, the Junior Executives will not, in any manner, be prejudiced if they form their own separate Union to raise their demands without having the necessity to enter into a combination with the Workers'
3. Union. It was specifically directed that tae appeal will be made ready on the present record and listed for hearing within two months. It is regrettable that nearly four years have gone by before the appeal has come up for hearing. During this period the trial of the suit in the High Court has also remained stayed as records were called by the Registry though it was not at all necessary to do so.
4. Be that as it may the fact remains that trial of the suit which could have been completed in a few weeks has not yet commenced. This consideration has largely influenced the decision which the Court proposes to deliver in the case.
5. The subject-matter of the dispute between the parties is the eligibility of the defendants- respondents who are Junior Executives in the employment of the plaintiff-Company at Sui, Rohri, Nawab Shah, Hyderabad and Karachi, to be enrolled as members of the Sui Gas Employees' Union.
6. The decision of the suit turns on the nature of the duties performed by the defendants and the interpretation of clause (xxviii) of section 2 of the industrial Relations Ordinance XXIII of 1969 which defines workmen in the following terms:--- "'Worker' and 'workman' mean any person not falling within the defini--petition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employ-- ment be expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or other--wise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute but does not include any person----
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who being employed in a supervisory capacity, draws wages exceeding eight hundred rupees per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature."
7. It is claimed by the plaintiff that the defendants are covered by clause (b) in that they are employed in a supervisory capacity, draw wages exceeding eight hundred rupees per mensem and performs duties mainly of a managerial nature. The defendants denied the plaintiff's claim and some of them filed lengthy counter-affidavits affirming that they arc neither employed in supervisory capacity nor do they perform functions mainly of managerial nature.
8. The learned trial Judge in the first instance granted an ad interim injunction in favour of the plaintiff restraining the defendants from becom--ing members of the Sui Gas Employees' Union but by order dated 29-11-1972 which is the subject-matter of this appeal, vacated the injunction, in the view that the plaintiff had failed to make a proper case for grant of an interim injunction.
9. The learned Judge observed:- "The defendants have raised serious questions as to the case set up by the plaintiff and the jurisdiction of this Court as well as the maintainability of the suit itself. The crucial question on which parties are at issue and which has been hotly contested by them is whether the Junior Executives fall within the definition of "workmen", or whether they fell within the definition of "employers" that is persons who are responsible for the management, supervision and control of the establishment or (under the new definition) persons who are employed mainly in a management capacity. This is pure question of fact and will depend entirely on the evidence which must be led at the trial of the suit regarding the nature of their work, their specific functions, duties and responsibilities."
10. With respect to the learned Judge, an error has crept in his approach to the case. In dealing with an application for an interim injunction the foremost consideration is to determine whether the plaintiff has made out a prima facie case 'prima facie' case is spelt out if a serious question of fact or law is raised in the plaint on which the parties will go to trial. The learned Judge was, however, influenced by the consideration that the defendants had 'raised serious questions as to the maintainability of the suit' but without identifying why the suit was not maintainable. An objection of this nature will prevail only if the plaint, on its face, discloses a legal defect regarding maintainability of the suit. The learned judge does not say that a defect of this nature appears on the face of the plaint. On the contrary he has relied on the serious nature of the objection taken by the defendants to the maintainability of the suit the proper criterion, however, was to determine firstly whether the plaintiff has made out a prima facie case, and on which side the balance of convenience and inconvenience lies if interim injunction is granted or refused and whether the plaintiff stands to suffer an irreparable injury if interim injunction is refused The learned Judge has kept in view the last-mentioned two considerations but since his approach to the primary consideration is not correct we propose to dispose of this appeal in the following terms:---
(1) The learned Judge in the High Court will proceed with the trial .Of the suit as soon as the records are received. The parties comprising of the plaintiff and the original 15 defendants will put in appearance before the Court on 19-10-1976 when issues will be framed. We expect that thereafter the suit will be disposed of within a period of four months ;
(2) During the trial of the suit the conditions laid down by the Court in its order dated 18-10-1972 will continue to remain in force viz., the defendant No.1 will not raise any industrial dispute on behalf of Junior Executives of the plaintiff-Company nor will the plaintiff terminate their services : and
(3) The trial of the suit will be confined to the plaintiff-appellant herein and the original 15 defendants. Of them defendant No. 3 has left the plaintiff's service when defendant No. 14 has since been promoted. Respondents 16 to 81 who were joined as parties in the appeal will not be included in the list of defendants in the High Court and the suit shall proceed as originally constituted ; and
(4) There will be no order as to costs of these proceedings.