' This appeal under section 22-D of the Industrial Relations Ordinance, 1969 is directed against the order of the learned Single Bench, N.I.R.C., Lahore dated 29-2-2000 whereby operation of the impugned orders passed by the appellant establishment terminating the services of its 16 employees, respondents herein, "are held in abeyance, till the next date of hearing".
2. Facts giving rise to the present appeal, briefly stated, are 'that the management of the appellant Company by orders dated 30-8-1999 terminated the services of the respondent employees with effect from 1-9-1999 on payment of one month's salary in lieu of notice stating that with a view to make its operations economically more viable, it has decided to outsource (given work on contract) the distribution operation in the city of Lahore and its vicinity to an independent contractor. Feeling aggrieved, the respondents assailed the orders of their termination in a petition under section 25-A read with sections 15, 22-A (12) of Industrial Relations Ordinance, 1969 and clause (3) of Standing Orders 12 and 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 filed before Punjab Labour Court No,1 Lahore through General Secretary of the Union.
' Labour Court, while issuing pre-admission notice of the petition to the present appellant, by its order dated 7-9-1999 suspended the operation of the impugned orders of termination. The appellant challenged the stay order issued by the Labour Court in revision before the Punjab Labour Appellate Tribunal. The learned Tribunal admitted the revision petition to regular hearing on 14-9-1999 and held in abeyance the orders of the Labour Court dated 7-9-1999. The Labour Appellate Tribunal, however, ultimately took the view that whatever was being agitated before him by both the parties "ought to have initially been placed before the learned lower Court which forum will be at liberty to form its own view and pass, a proper, equitable and lawful order at even the initial stage...." and thus, remanded the case to the Labour Court for passing a fresh order after hearing both the sides/their learned counsel. This was vide order of the Appellate Tribunal dated 27-11-1999. On remand, learned Labour Court after hearing both the parties confirmed the stay order on 9-12-1999 holding that it had jurisdiction to hear and decide the petition. Under section 25-A of the Industrial Relations Ordinance, 1969 filed by the respondents to challenge the orders of their termination. Aggrieved of this order, the appellant approached the Labour Appellate Tribunal in its revisional jurisdiction. The learned Tribunal, as stated in present appeal, upheld the order of the Labour Court by its order dated 26-1-2000. The appellant thereafter filed a Constitutional petition (Writ Petition No,2003 of 2000) in the Lahore High Court which was disposed of through a consent order dated 23-2-2000 passed in terms of the joint statement of learned counsel for both the parties that they would be satisfied in case the operation of the impugned orders of the Labour Court dated 9-12-1999 and of the Labour Appellate Tribunal dated 26-1-2000 be suspended/set aside and the termination orders of the respondents be held in abeyance till 2-3-2000 "so that the respondents may be able to file petition before the N.I.R.C. Alongwith an application for interim relief".
3. The respondents then filed a petition under section 22-A (8)(g) read with sections 25-A, 22-A(12) of the I.R.O., 1969 and clause (3) of Standing Orders 12 and 13 of West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 before the learned Single Bench of this Commission at Lahore praying that "respondents and all connected persons may kindly be restrained from committing unfair labour practice and more particularly termination letters dated 30-8-1999 in respect of all the petitioners may kindly be suspended and petitioners may be reinstated with full back benefits". This petition was accompanied by an application for the grant of interim relief and an application under section 65-B of the I.R.O, 1969 seeking condonation of delay, if any. The learned Member, Lahore Bench by his order dated 29-2-2000, impugned in this appeal, after taking note of the grievance/objection made by the respondents against their termination and after referring to the orders passed by the Labour Court, Appellate Tribunal and the High Court issued notice to the appellant for filing parawise comments and further directed that "in the meantime, operation of the impugned orders dated 30-8-1999 are held in abeyance, till the next date of hearing and the case was adjourned to 27-3-2000. This order of the learned Single Bench, as stated above, has been impugned in the present appeal.
4. We have heard the learned counsel for the parties at considerable length: Learned counsel appearing for the respondents at the very outset has raised a preliminary objection contending that the order impugned in the present appeal being an interim order is not a 'decision' within the meaning of section 22-D of Industrial Relations Ordinance, 1969 and as such the appeal filed by the management is not maintainable. In support of his contention, learned counsel has relied upon a decision of the Full Bench of this Commission in the case titled Capt. Reted. Abdul Wajid and two others v. Sher Muhammad and others (1980 PLC 800). The case cited by the learned counsel is not of much help to him as the objection raised in the cited case on behalf of the respondents was that the appeal against a decision of acquittal or enhancement of sentence was not maintainable. This objection was upheld with the observation that the word 'decision' used in subsection (1) section 22-D of I.R.O., 1969 does not mean and include a decision of acquittal.
5. Learned counsel for the appellant, on the other hand, contended that the word 'decision' used in section 22-D of I.R.O, 1969 is comprehensive enough to include not only final judgments but also interlocutory orders like the one impugned in the present appeal. To support his submission, learned counsel has placed reliance on a number of judgments some of which being more relevant to the issue may usefully be referred to. While interpreting the word 'decision' used in section 36-D(I) of Industrial Relations Ordinance, 1969 it was observed by a Division Bench of the Karachi High Court in the case of M.O. Basha v. The Presiding Officer, Sindh Labour Court (PLD 1975 Karachi 57) that the expression "a decision is not qualified by any word of limitation to give to it restricted meaning as one on merits." It was further observed that it is well-accepted principle of interpretation that the word should be given its ordinary meaning unless the context so restricts". In yet another case decided by Karachi High Court reported as 1986 CLC 442, it was held that the word 'decision' as used in section 14 of the Family Courts Act (providing for an appeal) is comprehensive enough to include every order made under section 12 of the Guardians and Wards Act including an order to produce the minor in Court and that such an order is appealable.
Meaning, scope and import of the word 'decision' was also examined with reference to the right of appeal in the case of Mst. Yasmin Zafar v. Muhammad Anwar Khan and others (PLD 1989 Lahore 38) and it was held that the word 'decision' has not been defined under Act and, therefore, recourse may legitimately be had, to its dictionary meaning and after referring to various dictionary meanings, it was noted that the word 'decision' "has a broad connotation and is comprehensive enough to cover not only final judgments but even interlocutory orders". Repelling the contention raised on behalf of the respondent in that case that appeal lies only against such a decision which finally determines the, proceedings before the Court, it was observed that if that were the intention of the legislature, it could well have used the expression, a ' final decision' instead of a 'decision' in the relevant provision. It may pertinently be pointed out that under section 22-D of Industrial Relations Ordinance, 1969 also, the expression used is 'decision' and not 'final decision' . Similar view was taken in the case reported as PLD 1998 Quetta 1 where it was held that the word 'decision' used in subsection (3) of section 67 of the Representation of the People Act, 1976 would not necessarily refer to the final adjudication of a dispute before Election Tribunal but would also include interlocutory order. Again in a case decided by Labour Appellate' Tribunal, Sindh reported as 1985 PLC 298, while considering the connotation of word 'decision' in section 37(3) of Industrial Relations Ordinance, 1969, it was held that "decision would include both final as well as interim orders". It was also observed in a case reported as 1997 PLC 81 that an ad interim order passed by a Member, N.I.R.C. Is challengable before Full Bench in an appeal under section 22-D of the I.R.O., 1969 though this observation was made in the context of an alternate remedy being available so as to hold that the writ petition under Article 199 of the Constitution was not maintainable. A Full Bench of this Commission in a case of Pakistan Ware House Carrears Workers Union v. A Bench of N.I.R.C. (1988 PLC 890) repelled the contention that since no adjudication was involved in the granting of a certificate of CBA under section 22(1) of the I.R.O, 1969, it did not constitute a 'decision' but was only an order and as such not appealable under section 22-D of the I.R.O., 1969, Lahore High Court in a recent case reported as Pakistan Telecom Company Lions Staff Union v. N.I.R.C. (1999 PLC 320) observed that the word 'decision' has not been defined either in I.R.O., 1969 or in the N.I.R.C. (P&F)
Regulations, 1973. It has got no fixed legal meaning and is not restricted to judicial acts. "It is a comprehensive terms and may include even the ministerial determination". No judgment taking a contrary view has been cited before us. In the circumstances, we reject the objection of the learned counsel for the respondents to the maintainability of the appeal.
6. To support the appeal on merits, learned counsel for the appellant assailed the validity of the impugned order on a number of grounds, His first contention was that the respondents having set up a case of unfair labour practice by moving a petition under section 22-A(8)(g) of 1969 could seek the interim relief only by moving an application under Regulation 32(2) of the N.I.R.0 (P&F), Regulations, 1973 and of course on making out a proper case of an unfair labour practice likely to occur. Respondents did not file any such application nor there was any apprehension or likelihood of any unfair labour practice to occur in future as according to the allegations made by them in the main petition, the unfair labour practice, if any, had already occurred. In the circumstances, the respondents, according to the learned counsel for the appellant were not entitled to any interim relief nor could they be granted any such relief on a routine application filed under section 151, C.P.C. Support for this submission was sought to be drawn from an unreported order dated 19-9- 1997 passed by the High Court of Sindh in a Constitutional Petition No,1197 of 1997 photo copy of which has been placed on record. It was next contended by the learned counsel for the appellant that by passing the impugned order, the learned Single Member has restored the status quo ante which in fact amounted to granting the main relief which was not permissible in view of the dictum laid down by the Supreme Court of Pakistan in cases reported as 1995 SCMR 6 and 1998 SCMR 68.
Yet another grievance made by the learned counsel was that the main petition filed by the respondents was accompanied by an application for condonation of delay but the learned Member without adverting to the question of limitation and without condoning the delay proceeded to grant the stay order which was wholly illegal. Reliance for this was placed on the case titled Associated Cement Wah v. Hassan Din and two others (1995 PLC 592). It was further contended by the learned counsel that before granting the interim relief vide the impugned order, the learned Member should have found the existence of at least a prima facie case of unfair labour practice and should also have taken procedural action provided under Regulation 32(2) of the N.I.R.C. (P&C) Regulations, 1973. Submission of the learned counsel was that without recording any finding that there existed any prima facie case of the commission of unfair labour practice on the part of the appellant and/or that there was any apprehension of the commission of any further acts of unfair labour practice, the learned Member could not have granted the interim relief.
Reliance for this submission was placed on 1980 PLC 752. It was argued by the learned counsel that the impugned order amounted to directing the reinstatement of the terminated employees which could only be granted after coming to the conclusion on the basis of evidence that the termination of the respondents was by way of unfair labour practice. Reliance for this was placed on the case reported as PLD 1976 Lah.
611. Learned counsel also made a grievance that the impugned order was passed by the learned Member mechanically and without any application of mind to the factual and legal aspects governing the grant of interim relief nor was it noticed. That the respondents' petition was still pending before the Labour Court when they approached the learned Member. Learned Counsel finally argued on the basis of a case titled Iftikhar Ahmad v. N.I.R.C. 1998 PLC 268) that in granting interim relief, a Court or Tribunal Must first decide the question of its jurisdiction. Support for this preposition was also sought to be drawn from Miss Rukhsana Ijaz v. Secretary Education (1997 SCMR 167).
7. Controverting the submissions of the learned Counsel for the appellant regarding the question of limitation, Mr. Asmat Kamal Khan, learned Counsel for the respondents submitted that there was no question of limitation involved in the case as the respondents had appraoched the Commission after the consent order obtained from the High Court. Learned Counsel for the appellant, however, argued that the respondents have themselves moved an application for condonation of delay.
8. We have given our anxious consideration to the submissions made by the learned Counsel, for the parties. There can be no cavil with the proposition which by now is well-settled that before granting interim relief, the Court or the Tribunal must find whether there existed a prima facie case in favour of the person seeking the interim relief and it must also examine the concepts of balance of convenience/inconvenience and irreparable loss. In a case like the present one which is based on the allegations of unfair labour practice, the learned Member before proceedings to grant the interim relief should have found at least prima facie that the allegations made in the petition coupled with some other material, if any, placed on the record before him disclosed the commission of an unfair labour practice on the part of the employer/appellant because on such a finding depended the exercise of jurisdiction of N.I.R.C. Perusal of the impugned order shows that not even a passing preference has been made to this aspect of the matter. The learned Member does not appear to have considered that the grievance agitated before him was relateable to the unfair labour practice. The learned Member is also not shown to have examined the question of interim relief with reference to the provisions of Regulation 32(2) which in terms is attracted only when there is some apprehension that an unfair labour practice is likely to occur to prevent which some interim measure is called for. Contention of the learned Counsel that in fact no application under Regulation 32(2) was moved for seeking the interim relief is also borne out from the record as we find that the application for the grant of interim relief was filed under section 151, C.P.C.
Praying therein simply that till the final disposal of the main petition, operation of the termination letters dated 30-8-1999 be suspended. Apprehension/likelihood of any unfair labour practice occurring in future was not even mentioned in this application. Learned counsel for the appellant was also right in contending that since the respondents themselves have moved an application for condonation of delay, learned Member should have addressed himself to the question of limitation. #TBS The facts giving raise to this case may briefly be stated as follows. #TBE ' Having heard the learned Counsel for the parties and having perused the relevant record particularly the impugned order, we are satisfied that the learned Member before passing the impugned order did not keep in view the relevant considerations and the legal/statutory requirements governing the grant of interim relief. In the circumstances, we allow this appeal, set aside the impugned order of the learned Member dated 29-2-2000 and remand the case to him for passing a fresh order in accordance with law particularly keeping in view the well-settled principles highlighted hereinabove governing the grant of interim relief and, of course, after hearing both the parties.