1991 PLP 597 (PLC)

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 practice 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. 2P. & 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 LJ.Q.B. 24), (3) "Not ascertained" ..... (4) "Previously, ascertained" ..... (5) "Ascertained goods," ..... (6) "Ascertained value".... (7) "Ascertained residue" ..... Ballentine's Law Dictionar 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 Publishin 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 P L C 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 P L C 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 reasonable lay to give rise to some unfair labour practice, within the meaning of clause (b) of sub-regulation (2) of Regulation 32, then I do not see any reason why it should not have the authority to grant interim relief, as stated in or akin to clauses (c) to (e) of the same sub- regulation...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 Supreme Court in the case of the Sindh Employees Social Security Institution P L D 1975 S C 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 S C M R 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 (P L D 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 face case. If he has failed to do that and injunction is refused it will still be open to him 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 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 lit 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 which is not appealable, we dismiss this appeal with no order as to costs. M.Y.H./152/N.I.R.C Appeal dismissed.