DECISION This is an appeal against a decision dated 14th March, 1970, whereby the learned Chairman of the Second West Pakistan Labour Court, Karachi, allowed the legal objections under section 11(2) of the West Pakistan Industrial Disputes Ordinance, 1969 (hereinafter called the repealed Ordinance), as to the maintainability of the application of the appellant under section 6(8) of the repealed Ordinance. In the result, the application under section 6 (8) of the repealed Ordinance was dismissed. The facts giving rise to the' appeal briefly put are these.
2. The Five Elected Representatives of the workmen of P. W. D. Workshop, Jamahoro (Hyderabad), made an applica--tion on 25th January 1969, under section 6 (8) of the repealed Ordinance. It was registered as Industrial Dispute No. 5 of 1969. The appellants raised four demands, namely (1) that all these employees Of the Irrigation Department of Ghulam Mohammad Barrage, who have completed 3 months' services, should be declared permanent and entitled to pension, (2) the Factories Act may be extended to the employees of Ghulam Mohammad Barrage Irrigation Workshop, Jamshoro, (3) that increments for 1967 of employees, who have been recommended by the S. D. O. And Mechanical Engineer, should be paid with arrears, and (4) to uniforms per year be allowed to all the workers of the Workshop.
3. An application under section 11(2) of the repealed Ordinance was made on the following grounds:--
(I) That the Workshop is purely a Provincial Government Workshop, which is governed by Statutory Rules as to their conditions and terms of service.
(2) That the Workshop is neither Commercial Services nor an Industrial Establishment.
(3) That the Workshop is run on no profit basis.
4. The learned Labour Court allowed the application under section 11(2) of the repealed Ordinance and dismissed the application under section 6(8) of the repealed Ordinance on the following grounds, namely:
(1) That the Irrigation Workshop, Jamshoro, is neither an Industrial Establishment nor a Commercial Establishment within the meaning of section 2 (j) of the repealed Ordinance. This conclusion is based on to-fold grounds, that is:
(a) Industrial Establishment, as d---fined in the repealed Ordinance has been given the same meaning as in clause (f) of section 2 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Relying on the Proviso to sub-clause (4) of section 1 of the Standing Orders Ordinance that as the same does not apply to industrial and Commercial Establishments carried on under the authority of the Provincial Government, where statutory rules of service are applicable to the workmen employed therein the Court drew the inference that as the Standing Orders Ordinance does not apply to a Work--shop run under the authority of the Provincial Government and there being no other definition of Industrial and Commercial Establishments, the Jamshoro Workshop cannot be held to be an Industrial and Commercial Establishment.
(b) The Jamshoro Workshop was not a profit-making concern and, therefore, also it cannot be said to be an Industrial or Commercial Establishment.
(2) That all the demands raised by the appellant are covered by Statutory Rules contained in the Pak. P. W. D. Manual, 'Vol. 1, and, therefore these cannot be raised for adjudication by the Labour Court.
5. The admitted position is that the Jamshoro Irrigation Department Workshop is run under the authority of the Provincial Government. Proviso 4 (c) to section 1, of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 (hereinafter called the Standing Orders Ordinance), runs as under:- "Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Central or any Provincial Government, were statutory rules of service conduct or discipline are applicable to the workmen employed therein."
6. In order that the above proviso be applicable, it is necessary to consider whether there are statutory rules of service applicable to the workmen of Jamshoro Workshop. It was contended by the learned Representative on behalf of the Workshop that Pak. P. W. D. Manual, Vol. 1, contains statutory rules governing the, terms of service and conduct of the workmen employed in the Jamshoro Workshop. On the other hand, it is submitted by the learned Representative for the appellant that these rules cannot be said to be statutory rules. In support of this contention, it was urged that the burden lay on the respondent to prove that these rules were framed under the Government of India Act 1919 or 1935, or 1956 Constitution of Pakistan or that of 1962-Constitution.
The learned representative for the Workshop was unable to place before me anything which could prove that these rules were framed under any of the Acts or Constitutions mentioned above. The preface to the Manual dated 1st June 1929, would show that the Manual was intended to define the scope of the Administrative and Executive functions of the officers of the Public Works Department and to embody such rules as were necessary in the interest of Provincial Financial Control. The said Manual was reprinted in 1954 by the Government of Sind. It is the case of the Government, as would appear from the affidavit of Mr. Ghyasud-din Farooqi, Superintendening Engineer, that the works of P. W. D. (Irrigation and Power), Government of Sind are performed in pursuance of the provisions of P. W. D. Manual, Vol. 1. On behalf of the workmen, Mr. Mashooq Ali, Gene-al Secretary of the Union of workmen has filed his affidavit. He has deposed that the Bombay Public Works Department Manual was compiled in 1929 for the workmen of P. W. D. The Workshop of Jamshoro is not under the control or authority of Pak. P. W. D., but that it is a separate department. I would, however, accept the statement of Mr. Farooqi that the employees of Jamshoro Workshop are governed by the rules under Pak. P. W. D. Manual, Vol. 1. The presumption will be in favour of the legality of these rules. I would hold that these rules have statutory force.
7. On the finding that I have arrived at, the rules contained in Pak. P. W. D. Manual, have the force of statutory rules and, therefore, the provisions of the Standing Orders Ordinance, would not apply to the workmen of Jamshoro Workshop. The proviso to clause (4)(c) of section 1, of the Standing Orders Ordinance is based on sound principle. It is to avoid conflict between to set of rules governing the terms of service of workmen. In this connection, a question will also arise as to whether the jurisdiction of the Court to adjudicate an industrial dispute under section f (8) of the repealed Ordinance, is ousted because Standing Orders do not apply to the workmen of Jamshoro Workshop. The learned representative for the res--pondent cited a number of decisions of Labour Courts in support of his contention that the jurisdiction is ousted. I am of the view that the jurisdiction of the Court is not ousted simply because the Standing Orders do not apply to the workmen of Jamshoro Workshop. There is a clear distinction between the repealed Ordinance and the Standing Orders Ordinance of 1968. The former conferred jurisdiction on the Industrial Court to adjudicate and determine industrial dispute or any matter constituting such dispute, while the Standing Orders are only rules relating to the relationship between the workmen and the employers. There is nothing in the repealed Ordinance, and none has been pointed out to me, if it I found that Jamshoro Workshop is an Industrial Establishment and the employees of the Jamshoro Workshop are workmen within the meaning of the repealed Ordinance, to take away the jurisdiction of the Industrial Court. I would hold that the jurisdiction of the Industrial Court is not taken away simply because the rules contained under the Standing Orders do not apply to the workmen of Jamshoro Workshop.
8. The next question that requires consideration, is as to whether any provision under the Government of India Act, 1935 or that of 1956-Constitution or that of 1962-Constitution bars the jurisdiction of the Industrial Court as the power to frame rules in respect of the workmen of Jamshoro Workshop, who are Sind Government Civil Servants, has been given to the Governor. I have given very careful consideration to this aspect of the case, and I have come to the conclusion that there is nothing in the Act or in the to Constitutions to take away the jurisdiction of the Tribunal, as the Governor has framed Service Rules applicable to the Civil Servants of Jamshoro Workshop Section 241 of the Government of India Act of 1935, deal with the recruitment and conditions of Service of Civil Servants. The relevant provision of section 241 (2)!b) reads as under:- "(2) Except as expressly provided by this Act, the conditions of service of persons serving His Majesty in a civil capacity in India shall, subject to the provisions of this section, be such as may be prescribed- (a).
(b) in the case of person serving in connection with the affairs of a Province, by rules made by the Governor of the province or by some person or persons authorised by the Governor to make rules for the purpose: Subsection (4) of section 241 of the Government of India Act, 1935, reads as under: "Notwithstanding anything in this section, but subject to any other provision of this Act, Acts of the appropriate Legislature in India may regulate the conditions of service of persons serving His Majesty in a civil capacity in India, and any rules made under this section shall have effect subject to the provisions of any such Act."
9. The Industrial Disputes Ordinance of 1968, was made by the appropriate Legislature, i.e. By the Governor under Article 79 of the late Constitution. The object of the repeal Ordinance was to confer certain rights on the workmen. These rights were meant to regulate the conditions of service of workmen. The relevant provisions under the Constitution of 1-956, is Article 182. The relevant portion reads as under:-- "(1) Except as express provided by the Constitution or an Act of the appropriate Legislature, appointments to the civil services of, and civil posts in the service of, Pakistan shall be made- (a).
(b) 1n the case of services of a Province and posts in connection with the affairs of a Province, by the Governor of the province, or such person as he may direct."
10. Express provision has been made by the appropriate Legislature in the repealed Ordinance of 1968, as to certain terms and conditions of service of workmen. The relevant provision under 1962- Constitution is contained under Article 178. It runs as under:- "(1) Subject to this Constitution and law- (a).
(b) appointments to a civil service of a Province, or to a civil post in connection with the affairs of a Province, shall be made by the Governor of the Province or a person authorised by the Governor in that behalf."
Article 178 also contemplates that there can be law governing the rights of the civil servants. I have come to the conclusion, after the perusal of the relevant provisions of the Constitution that the power of the Industrial Court is not taken C away because of the existence of statutory rules framed by the Governor.
11. I would now proceed to consider as to whether the provisions of the repealed Ordinance of 1968, are applicable to the workmen of Jamshoro Workshop.
12. The Industrial Disputes Ordinance, 1968, is silent as to whom it applies unlike the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. The latter clearly states as to whom it will apply. After a perusal of the repealed Ordinance, and as would appear from its preamble that it applies to industrial disputes. Industrial dispute has been defined under the repealed Ordinance under section 2(i), as under:- " `industrial dispute' means any dispute or difference between employer and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employ--ment or with the conditions of work of any person."
13. There is no doubt that the demand to be made permanent, the increment in pay and the supply of uniform would amount to industrial dispute between the employers and workmen. Employer is defined under section 2(f) of the repealed Ordinance as under:- " `employer' includes-
(i) in relation to an industry carried on by or under the authority of any department of Government, the authority prescribed in this behalf, or where no authority is prescribed, (he head of the Department;
(ii) in relation to an industry carried on by or on behalf of a local authority, the Chief Executive Officer of that authority; and (i.e) in relation to any other industry, the proprietor of such industry and every Director, Manager, Secretary, agent or other officer or person concerned with the Management thereof;".
14. Industry is defined to mean, "any business, trade, undertaking, manufacture or calling of employers, and includes any calling, service, employment, handicraft, or industrial- occu--pation or avocation of workmen;" The Jamshoro Workshop, it would appear from para. 2, of the affidavit of Mr. Farooqi, dated 18th August 1970, that among many of its work, it also manufactures parts and accessories of pints and machinery. It would, therefore, be covered by the term 'industry'. The definition of employer contemplates an industry which is run by or under the authority of any Department of the Govern--ment In this case, Jamshoro Workshop is run under the authority of the Government by Irrigation Department. In this connection, it is also necessary to consider whether the employees of Jamshoro Workshop can be said to be workmen within the meaning of section 2
(u) of the repealed Ordinance, which defines workmen. It means: "any person, including an apprentice, employed in any industry to do any skilled, unskilled, manual, technical or clerical work, for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceedings under this Ordinance in relation to an industrial dispute, includes any such person who has been discharged or retrenched in connection with, or in consequ--ence of, that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person-- (i).
(ii).
(i.e).
(iv).
(v) who is a Government servant, not being employed in a factory or in the railways, or in any other establishment, undertaking, department, profession or service declared by Government to be an industrial establishment or service for the purposes of this Ordinance "
15. There is no doubt that the employees of Jamshoro Workshop are servants engaged in the administration of State, but they are employed in a factory. Factory has been defined under section 2(j) of the Factories Act, 1934, to mean: "any premises, including the precincts thereof, whereon twenty or more workers are working, or were working on any day of the preceding twelve months, and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily carried on, but does not include a mine, subject to the operation of the Mines Act 1923 (IV of 1923);". '
16. I would hold that the workmen of Jamshoro Workshop are covered by the definition of workmen given under the industrial Disputes Ordinance, 1968. It may be noticed here that the definition of `workmen' in Industrial Relations Ordinance, 1969, is somewhat different. The dispute in question arose in January, 1969, while the Industrial Relations Ordinance, 1969, came into force from 13th November 1969. The definition of workmen, in the absence of anything that Industrial Relations Ordinance, 1969, has been given retrospective effect either by specific word or necessary intendment, it cannot be construed to be retrospective. The workmen of Jamshoro Workshop had a vested right to have their industrial dispute settled through a Court of law:
17. The Industrial Disputes Ordinance, 1968, does not lay down that it will not apply to Civil Servants in respect of whom the Governor has been pleased to promulgate Rules of Service. Moreover, an Ordinance promulgated by the Governor has no less a binding force than the Statutory Rules framed by him, both powers are derived from the Constitution. The Industrial Disputes Ordinance, 1968, is a latter enactment than the rules contained in the Pak. P. W. D. Manual. If there is a conflict between the to, the former being latter in the will prevail. In the result, if the rules contained in Pak. P.
W. D. Manual are silent about any matter, the Court's jurisdiction to resolve the dispute between the workmen and the employers and to bring about harmony and peace continues.
18. The next question that requires consideration is as to whether it is an essense of industry that it should be run for profit. After going through the evidence before me, I have come to the conclusion that the Workshop is run on the basis of profit. At any rate, even if no profit is made out the F undertaking (the Workshop) could be an industry. The Supreme Court of India in Madras Gymkhana Employees Union v. Gymkhana Club ((1967) 11 L L J 720'), after full review of case-law on the subject, came to the conclusion that for an activity to be an industry, it is not necessary that it must be carried on by private enterprise or must be commercial or result in profit. It is sufficient if the activity is anologous to the carrying on a trade or business and involves co-operation of employers and employees. I would adopt the principle laid down by the Supreme Court of India for the purposes of this appeal and hold that profit is - not an essence of an undertaking or industry.
19. Before I proceed to consider the demands of the appellants, it would be useful to consider the scope of the Power of the Industrial Court, while adjudicating an industrial dispute. The Industrial Disputes Act, 1947, and the Ordinances that followed relating to the labour disputes do not specify as to what is the power of the Industrial Court while deter--mining an industrial dispute. The object of the Legislature is not limiting the scope and power of the Labour Court, while determining an industrial dispute, appears to be quite obvious. The Paramount object behind the Labour Laws is to establish harmonious relationship between the workmen and the employers and with that end in view the Legislature did not consider it proper to limit the power of the Court. It was observed by Kaikaus, J., in Pakistan Tobacco Company Limited (1961 PLC 1033), as under:-- "It will be proper to state here the difference between an ordinary arbitration and a proceeding before an Industrial Tribunal. The arbitrator like a Court simply determines what the rights of the parties are. He neither purports to grant nor can be grant to a party any right which it does not possess. If an arbitrator were, for instance, to find in a case of inheritance that one of the heirs is entitled under the relevant law to one-third shares of the estate of the deceased he could not on equitable grounds convert that one-third to one-half. The scope of the jurisdiction of the Industrial Tribunal is however entirely different. The Tribunal does not discover what the rights of the parties are. If he were simply to do that he would never be able to help the workmen because the rights of the workmen are based on contract and cannot go beyond the terms of the contract. The Tribunal possesses a jurisdiction by which it alters the terms of the contract and grants to parties rights which they do not possess under the law on what ft considers to be just and equitable grounds.
Truly speaking, there are no fetters at all on the discretion of the Tribunal to vary the conditions of service."
20. Similar observation was made by S. A. Rahman, J., in Glaxo Laboratories Limited (PLD 1962 SC 60). He observed as under:- "It is now well settled that a Tribunal, functioning under the Act, can alter the terms of contract between the employers and his workmen in order to resolve any industrial dispute.
21. The Supreme Court of India in the case of New Maneckchowk Spg & Wvg. Co. Ltd. v. Textile Labour Association--- Ahmadabad (1961 PLC 663), after considering a number of cases of Federal Court of India held that, "it is open to an Industrial Court in an appropriate case to impose new obligations on the parties before it or modify contracts in the interest of industrial peace."
22. 1 would now proceed to consider the demands raised by the workers. Of the four demands raised by the workers, Mr. A. Majeed, the learned representative for the appellant, accepted the finding of the learned Labour Court in respect of the application of Factories Act to the Jamshoro Workshop workmen. So far as the demand as to the increment of pay is concerned, this demand cannot be granted. The learned representative did not Point out any rule under the Pak. P. W. D.
Manual, under which higher authorities were bound to accept tee recommendation, as to the increase in pay, of their sub--ordinate officers. It is a matter of discretion for the authorities concerned to accept or not to accept the recommendation to increase the pay. It is not the case of the workers that the authorities acted male fide in refusing to increase the pay. I would, therefore, confirm the finding of the learned Labour court' in respect of the demand to increase the pay. There now remain to of the demands, which I propose to take up separately.
23. The demand is:--- "All those employees of Irrigation Ghulam Mohammad Barrage who completed the three months period of their services may be declared permanent and pensionable."
The main objection as deposed by Mr. Farooqi in his affidavit dated 11th August 1970, is as under:- "That there is no provision of permanent Workers in the Workshop, the workers are charged on a particular work and the as per the periodical estimates on the demands of other Division of Irrigation Department."
The main contention on behalf of the respondents, in short, was that the workers are work-charged employees of the Workshop and, therefore, they cannot be made permanent. By "work-charged workman", is meant that the workman is paid for the work that he performs according to a settled rate. It would appear from the evidence on the record that it is misnomer to call the employees of the Workshop to be "work-charged". Admittedly, they are all paid a fixed monthly salary. The Department, while preparing a bill for the Work done on a particular job by the worker charges the person on the basis of the pay of the won ken for the the taken on the job. If the worker's pay is Rs.
60 and he has done the job for one day, the Department will charge Rs. 2 for the work done. While preparing the estimate of the cost for a job under rule 602, of the Manual, the Department has to charge for storage, interest on capital cost of building, plant and machinery, maintenance charges of buildings, plants and machinery, depreciation of buildings, plant and machinery, establishment charges including one percent on account of Audit and Accounts Establishment and profit. I am of the view that there is no force in the contention that as the workers of Jamshoro Workshop are work-charged employees they cannot be made permanent. They are monthly paid civil servants.
24. The nature of the work performed by the Workshop is of a permanent nature. The admitted position is that the Workshop performs the following type of work: -
(1) Maintenance of Canals and Channels of Irrigation Department of Government of Sind,
(2) Maintenance of Regulators and Gates of Irrigation Department of Government of Sind.
(3) Maintenance of Transport Vehicles of Irrigation Department of Government of Sind.
(4) Maintenance of Earthmoving machinery of Irrigation Department of Government of Sind.
(5) Maintenance of Exavators of Irrigation Department of Government of Sind.
(6) Fabrication of Parts and Accessories of Plants and machinery of Irrigation Department of Government of the Sind.
25. The agriculture in Sind, as its other provinces, depends mainly on irrigation canals. These canals are permanent. Their maintenance and the machinery needed for the same is also a permanent feature. A list of the workers has been appeaded to the affidavit of Mr. Mashooq Ali, General Secretary of the Union. The number comes to 219. Out of these 219 workers, there are only 15 persons who have less than three years service. The rest of the workers have more than 3 years service. Forty of these workers have put in about 16 years of service. These facts would show that though the work is permanent and the employees have also been working from year to year, but for reason best known to the Department they have not been made permanent. In this connection, it would be useful to make a reference to the attitude of the Government itself. The General Secretary P. W. D. Workers Association, Hyderabad, had raised certain demand against the Chief Engineer, Irrigation, West Pakistan. This case is reported in 1562 PLC 1004. Under Demand No. 5, which was whether work-charged workers be given permanent tenure of service and the work- charged establishment be converted into a permanent one. In written arguments on behalf of the Govern--ment it was stated that the Government was actively considering the demand and as soon as a decision is taken it will be imple--mented. It appears that the Government has not taken any decision so far on this demand.
26. It is stated by Mr. Mashooq Ali in para. 2 of his affidavit dated 24th September 1970, that the Workshop at Jamshoro is the biggest in Sind Circle and that there was a small Workshop at Sukkur.
On; hundred one workmen, out of 175, of the workmen of Sukkur Irrigation Workshop were made permanent in 1965. This fact has not been denied by the respondent. The President and the Chief Martial Law Admini--strator by leis order dated 1st June 1970, ordered that the workmen borne on the work-charged establishment in Telegraph Works at Kotri and Dacca, who had more than 3 years continuous service, shall to the extent considered necessary to deal with the permanent maintenance requirements, be allowed regular service benefits such as pension, leave, etc. As admissible to the temporary regular Central Government Servants. Admittedly, the employees of Pakistan Telegraph and Telephone Department were work-charged employees, as the workers of Jamshoro Workshop. The nature of duties to be performed, no doubt, is different. The policy of the Government is to treat labour equitably and fairly. The work-charged employees of the Central Government cannot have any superior right or privilege, Ms a class, as against the work-charged employees of Sind Government. In fact, the Government of Sind should have carried out the order of the President in principle, so far as it could apply to their own employees, to avoid dissatisfaction and daily bickering.
27. The contention of the learned representative for the appellant was that those workmen, who had put in nine months' service, should be made permanent. Id support of this contention, he relied on Standing Orders of 1968. I have already held earlier that Standing Orders are not applicable in the case of those employees, who are working under the authority of the Governor. I would think that the principle on which the President was pleased to pass the order dated 1st June 1970, in respect of P. & T. Department employees, that those who had put in 3 years' service, should be made permanent, is based on sound reason. The fact that a person, has worked for 3 years, would show that the job that lie was performing was apparently of a permanent nature. I would order that those of the workmen, who have put in 3 years of service or more should be made permanent and entitled to preside. It would, however, be open to the Department to retrench any of the workmen, if found in excess of the requirements of the Department. I may observe, as would appear from the affidavit of Mr. Mashooq Ali, which has not been controverted by the other side, that the Department had been engaging extra-hand for excess of work. In that view of the matter, the necessity of retrenchment would not arise. My belief finds further support from the fact that out of 219 workmen, 203 had been working for more than 3 years of may also observe that the list of the workmen attached to the affidavit of Mr. Mashooq Ali has not been challenged by the Department.
If, however, it appears to the Department that any of the persons mentioned in the list (Annexure W-1), to the affidavit of Mr. Mashooq Ali, is not a workman within the meaning of the repealed Ordinance of 1968, he would not be entitled to the order that I have passed granting the demand to be made permanent and entitled to preside. Retrenchment will be on the principle of last-come first-go.
28. Mr. Mashooq Ali has given a list, in para. 16 of his affidavit dated 24th September 1970, of the persons who may be given to pairs of uniforms every year on the basis that their clothes get soiled while performing their jab. Mr. 'Farooqi admitted in cross-examination before me on 6th November 1970, that the clothes of the persons mentioned in para. 16, of the affidavit of Mr. Mashooq Ali do get soiled while performing their duties. Mr. Mashooq Ali stated that the clothes of these persons, while performing their duty, is subject to extensive wear and tear. Mr. Mashooq Ali also deposed that the category of employees, as the workers of Jamshoro, working for M. P. O. WAPDA Equip--ment Workshop, Jamshoro, are given to sets of uniforms every year. The employees of T. & T. Workshop, Kotri, are also given to sets of uniforms free of cost annually. Sandoz (Pakistan) Limited, Jamshoro, also supplies to sets of uniforms every year to its employees. These facts, which are mentioned para. 16 of the affidavit of Mr. Mashooq Ali, have not been challenged by the Department. I would order that in the interest of harmony and peace, the workers of Jamshoro Workshop mentioned in para. 16 of Mr. Masbooq Ali's affidavit should be given to sets of uniforms every year, as is supplied by T. & T. Workshop, Kotri, to its employees. The uniforms to be supplied from December 1970, on the pattern supplied by T. & T, Workshop, Kotri.
29. Lastly, I would dispose of certain technical objections that have been raised by Mr. Soomro, the learned Advocate for the respondent. He contended, in the first place, that no appeal lay against an order passed on an application under section 11 (2) of the repealed Ordinance of 1968. The party tinder section 11 of the repealed Ordinance was entitled to raise all objections, which would show that the application for adjudication of the industrial dispute was not maintainable. If the application was allowed the application for determination of the industrial dispute would stand dismissed. If no appeal lay the aggrieved party would be deprived of the right of appeal. It was held by Sattar, J. In Chittagong Mercantile Association's case (1963 PLC 1032), that a decision under section 10, of the Industrial Disputes Ordinance, 1959, which was similar to section 11 (2) of the repealed Ordinance of 1968, was an award and that an appeal lay there--from. I would hold, following the decision given by Sattar, J., that the order passed on an application under section 11 of the repealed Ordinance is an award and that an appeal against that order is maintainable.
30. In the second place, Mr. Soomro contended that the award has not been published under section 15, of the repealed Ordinance and, therefore, no appeal lies against the same. The failure on the part of the Government to publish the award in the Gazette cannot deprive the party aggrieved from his right of appeal in the absence of any prejudice caused to the other side by non- publication of the award. Mr. Soomro was unable to show that his client has been prejudiced in any way, if the Government did not publish the award in the Gazette.