FAKHRUDDIN G. EBRAHIM, J.-This petition , under Article 201 of the Interim Constitution of the Islamic Republic of Pakistan is directed against the order dated 6-4-1973, made by the Sind Labour Appellate Tribunal, the respondent No. 1 herein, by which an earlier order, made by the Sind Labour Court No. 1 in favour of the petitioner, on an application made by him under section 34 of the Industrial Relations Ordinance, 1969, in which it was held that the respondent No. 2 employer had acted in contra--vention of the provisions contained in Standing Orders Ordinance in terminating the services of the petitioner herein, was reversed.
2. The admitted facts are that the petitioner was appointed as Incharge of the Printing Section of the respondent No. 2 organization with effect from 12th July 1971, at the consolidated salary of Rs.
580 per month in the grade of Rs. 500-40-900. The appointment letter provided that the petitioner will remain on probation for a period of six months during which his services may be terminated without notice and his confirmation in the permanent establishment of respondent No. 2 will depend, upon successful completion of his probation. The duties of the petitioner were :- "Production, planning and supervision of the printing section as well as canvassing for and obtaining printing order."
Three months and 20 days after the petitioner was employed as aforesaid, the respondent No. 2 by its letter dated 30-10-1.971, terminated the services of the petitioner with immediate effect on the ground that his work was found unsatisfactory.
3. Being aggrieved by this termination of his services, the petitioner, on 3-5-1972, made an application under section 34 of Industrial Relations Ordinance, 1969 before the Sind Labour Court No. 1, at Karachi. The petitioner's contention was that he being not an "employer" as defined in clause (viii) of section 2 of the Industrial Relations Ordinance, 1969, was a "workman" within the meaning of clause (xxviii) of section 2 of the said Ordinance, and on completion of the probation period of three months became permanent workman as provided in clause (b) of Standing Order No. 1 of the West Pakistan Industrial and Commercial Employment (Stand--ing Orders) Ordinance, 1968 (hereinafter called the "Standing Orders Ordi--nance"), which in turn entitled him to the benefits of Standing Order No. 12, under which his services could be terminated, for reasons other than misconduct, on one month's notice or pay in lieu thereof and not other--wise, in these circumstances; termination of the employment was in violation of the terms and conditions guaranteed to him under the Standing Orders Ordinance and he was, therefore, entitled to an order for re-instatement.
4. The Labour Court by its order dated 30th January 1973, 'allowed the petitioner's application under section 34 and directed the respondent No. 2 to re-instate him forthwith and grant to him all dues which he was entitled to under the prevailing rules. The Court held that the petitioner was a workman in terms defined under the aforesaid Standing Orders Ordinance or . The Industrial Relations Ordinance, 1969 as amended. It may be noted here that for the purpose of the definition of the expression "workman" as appearing in the Industrial Relations Ordinance, 1969 the Labour Court relied on the definition as amended by Ordinance XLVIII of 1972 which excluded from its category all persons employed in supervisory capacity drawing wages exceeding Rs. 600 per month.
5. The respondent No. 2 challenged the order of. The Sind Labour Court which was described by the latter as an "Award" in an appeal before the Sind Labour Appellate Tribunal under the then section 37 of the Industrial Relations Ordinance, 1969. The Appellate Tribunal by its decision dated 6-4-1973 came to the conclusion that the petitioner was not a workman within the meaning of the expression as defined in the Standing Orders Ordinance and, accordingly, not entitled to the benefit of the Standing Orders and set aside the Award of the Sind Labour Court.
6. Mr. Mushtaq Hussain, the learned counsel for the petitioner, challenged the impugned order of the Appellate Tribunal on two grounds. His first contention was that the petitioner was clearly a "workman" as defined in the industrial Relations Ordinance and, therefore, entitled to the rights guaranteed under Standing Orders Ordinance, and, secondly, the order made by the Sind Labour Court in favour of the petitioner on his application under section 34 of the Ordinance was, notwithstanding its des--cription by the Labour Court as an Award, in fact a decision and, therefore, not appealable under section 37 of the Industrial Relations Ordinance before the Appellate Tribunal. In support of his contention that the petitioner was a workman the learned counsel invited our attention to the definition of "employer", "workman" and "establishment" as it stood in 1971. He went on to argue that in order to be an employer under the Industrial Relations Ordinance, 1969, the person had to be responsible for the manage--ment, supervision and control.
Of the establishment or an officer concerned with the management of the affairs of an establishment. The definition of the expression "workman" is of little assistance for it is defined as meaning any person not falling within the definition of employer. The only ground urged by the learned counsel was that the printing section of the respondent No. 2 was part of the establishment of respondent No. 2 and in order that the petitioner becomes an employer within the meaning of its definition as given in the Industrial Relations Ordinance, 1969, he should have been incharge of the whole of the establishment of the respondent No. 2 and not confined to its printing section only. I may add that the learned counsel did not by reference to the duties of the petitioner urge that he was not an employer as defined in the Industrial Relations Ordinance, 1969 but only confined himself to the assertion that the definition was not attracted because the petitioner was incharge of the printing section and not of the whole of the establishment of the respondent No. 2. To my mind the learned counsel is clearly in error in the meaning that he seeks to give to the expression "establishment" which is defined in Industrial Relations Ordinance as follows :- " `establishment' means any office, firm, Industrial Unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any manufacturing process, business, trade or service."
7. From the aforesaid definition it would appear that an employee may have more, than one establishment, for example, offices in a com--mercial area, shops in business area or one or more industrial units in an industrial area and the expression "establishment" would include not A whole of the establishments of an employer but each of them individually That an employer may have more than one estalishment for carrying on his industry or for the purpose of his industry is clearly envisaged b provisions contained in the then section 22-A of the Industrial Relation Ordinance, 1969, reproduced hereunder "22-A. Collective Bargaining Agent for institutions with more than one establishment.-(1) Where an employer carrying on an industry has, for the purpose of that industry, more establishments than one, any registered Trade Union which fulfils such conditions as may be pres--cribed in this behalf may make an application in such manner and to such authority as may be prescribed for being declared as the Collective Bargaining Agent in relation to all such establishments and, upon such an application, there shall be determined in the prescribed manner a Collective Bargaining Agent for such establishments.
(2) Where a Collective Bargaining Agent has been determined under subsection (1) for the establishments referred to therein, are Collective Bargaining Agent determined, if any, under section 22 for any one or more of such establishments shall not undertake Collective Bargaining in respect of matters relating to the terms and conditions of , employ--ment applicable to workmen employed in any of such establishments."
It will, therefore, follow that there is no substance in the contention that a person to come within the definition of employer, as defined in the B Industrial Relations Ordinance, has to be incharge, supervision of or running the whole of the establishment of the employer for he may as well be, as in the present case, in charge of a part of the establishment.
8. As mentioned above the learned counsel was exclusively relying -upon the definition of the expressions "employer" and "workman" as appearing in the Industrial Relations Ordinance, 1969 in support of his contention that the petitioner was not an employer but a workman within the meaning of this Ordinance. It, however, appears to me that the definition of "workman',' relevant for our purpose is that contained in the Standing Orders Ordinance, for what was sought to be enforced by the petitioner in his application under section 34 of the Industrial Relations Ordinance, was a term guaranteed to him under the Standing Orders Ordinance. The definition of the word "workman" in Standing Orders Ordinance is as follows " `workman' means any person employed in any industrial or com--mercial establishment to do any skilled or unskilled, manual or clerical work for hire or reward."
It will, however, be fair to state that the learned counsel for t ht petitioner made no attempt to argue that the petitioner came within the aforesaid definition of workmen and rightly so for the duties of petitioner enumerated above would clearly exclude him from being a workman for he was not employed to do any skilled or unskilled manual or clerical work. I c have, therefore, no hesitation in holding that the learned Appellate Tribunal rightly came to the conclusion that the petitioner was not a workman as defined in the Standing Orders Ordinance and; therefore, not entitled to its benefits.
9. It was next contended on behalf of the petitioner that the order of the Labour Court in favour of the petitioner was a "decision" and not an "award" and, therefore, not appealable under section 37 of the Industrial Relations Ordinance, 1969. To appreciate this contention it may be appropriate to reproduce not only section 37 but also the definition of the expression "award" as given in the Industrial Relations Ordinance, 1969 "37. Award and decision of Labour Court.-(1) An award or decision of a Labour Court shall be given in writing and delivered in open Court and two copies thereof shall be forwarded forthwith to the Provincial Government provided, that if the Central Government be a party, two copies of the award or decision shall be forwarded to that Government as well.
(2) The Provincial Government shall within a period of one month from the receipt of the copies of the award or decision, publish it in the official Gazette.
(3) Any party aggrieved by an award given under subsection (1), may prefer an appeal to the Labour Appellate Tribunal within thirty days of the delivery thereof and the decision of the Tribunal in such appeal shall be final.
(4) All decisions of a Labour Court, other than awards referred to subsection (3) of this section, and sentences referred to in sub--section (3) of section 36, shall be final and shall not be called in question in any manner by or before any Court or other authority. `award', means the determination by a Labour Court, arbitrator or Appellate Tribunal of any industrial dispute or any matter relating thereto and includes an interim award." .
The Industrial Relations Ordinance does not define the word "decision except of course negatively as that which is other than an award. In the entire Ordinance, only that order of a Labour Court is described as a award which is given by the Labour Court after adjudication of an industrial dispute under section 32 of the Industrial Relations Ordinance Strictly speaking, therefore, an award is that which follows adjudication of an industrial dispute under section 32 only. Section 34 which provided for an application by a Collective Bargaining Agent, employer or workman to the Labour Court for enforcement of any right guaranteed or secured to it or him or under any law or any award or a settlement, neither speaks of an order or a decision of an award. Section 45 which gives the Labour Court and the Tribunal power to prohibit the strike speaks only of an order in writing to that effect without giving any indication whether such an order would be a decision or an award.
10. Mr. Mushtaq Hussain, the learned counsel for the petitioner, relied on the definition of "award" as meaning determination of any industrial dispute and went on to argue, that if the subject-matter of an application under section 34 of the Ordinance before the Labour Court is an industrial dispute within the expression as defined in the Industrial Rela--tions Ordinance; the order passed therein by the Labour Court will be an award and not otherwise. He went on to make a further qualification and that was that under section 43 of the Ordinance an industrial dispute is deemed to exist only if raised - in the prescribed manner by Collective Bargaining Agent or by an employer and that an application by an individual workman under section 34 even in relation to matter falling within the definition of industrial dispute will not be, by virtue of section 43, deemed to be an industrial dispute for it has not been raised by a Collective Bar--gaining Agent or an employee. If section 43 of the Ordinance is to be given its full effect there is little doubt that the distinction drawn by the learned counsel is sound and will result in an order made on an application under section 34 by an individual workman in relation to an industrial dispute a decision and not an award. There is, to my mind, still another aspect of this matter which will result in the conclusion that an order made under section 34, whether or not the applicant is a Collective Bargain--ing agent, employer or an individual workman, is not an award. As afosesaid award has been defined the Industrial Relations Ordinance, 1969 as meaning determination by a Labour Court of any industrial dispute or any matter relating thereto. Can it be said that in exercise of its jurisdic--petition under section 34 of the Ordinance the Labour Court is determining an industrial dispute? From the language of section 34 it would appear that the Court does not under it either determine or adjudicate an industrial dispute. It certainly does not determine or adjudicate upon rights of the parties. The section merely provides for enforcement of pre-existing rights and not determination or adjudication of rights between the parties. In this view of the matter the decision of the Industrial Court -under sec-- petition 34 would . Not fall within the meaning of the award as defined in the industrial Relations- Ordinance, 1969, for award . Is determination of an industrial dispute or any matter. Relating thereto and not enforcement of a recognized right guaranteed to a workman under any law, settlement or, award. The result is that an order under section 34 made by the Industrial Court in this case was not an award but a decision and, therefore, it was not appealable under section 37 of the said Ordinance.
11. The question that remains to I be answered is whether this Court, notwithstanding the conclusion that the petitioner was not a workman and, therefore, not entitled to the rights guaranteed under the Standing Orders Ordinance should entertain this petition and set aside the order of the Labour Appellate Tribunal as having been made without jurisdiction inas--much as no appeal lay before it against an order made by the Labour Court under section 34 of the Industrial Relations Ordinance.
12. Mr. Muhammad A.I Sayeed, the learned counsel for the respondent contended that our jurisdiction under Article 201 of the Constitution is discretionary and we should refrain from interfering if it results in a wrong being perpetuated. He went on to argue that setting aside the order of the Appellate Tribunal in these proceedings will result in making effective the Labour Court's order under section 34 of the Industrial Relations Ordi--nance, 1969 which order is, as aforesaid, not sustainable in law. The learned counsel invited our attention to the following observations of Chief Justice Hamoodur Rehman reported in Nawab Syed Raunaq A.I v. Chief Settlement Commissioner and others (PLD 1973 SC 236in support of his contention that we should in our discretion not entertain this petition "An order in the nature of writ of certiorari or mandamus is a discre--tionary order. Its object is to foster justice and right a wrong. Therefore, before a person can be permitted to invoke this discre-- tionary power of a Court, it must be shown that the order sought to be set aside had occasioned some injustice to the parties. If it does not work any justice to any party, rather it cures a manifest t illegality, then the extraordinary jurisdiction ought not to be allowed to be invoked. In the same manner, in the instant case, if the High Court in its extraordinary jurisdiction under Article 98 of the Constitution of 1962, came to the conclusion, as it has in fact done, that the orders of the Deputy Claims Commissioner verifying the claims of the appellants were illegal and without jurisdiction. It could legitimately refuse to set aside the order of the Officer on Special Duty, even though the latter was clearly without jurisdiction."
13. I will, therefore, be justified in refusing to set aside the order made by the Labour Appellate Tribunal even though it is clearly without jurisdic--petition, for it would in the language of the Thief Justice neither "foster justice nor right a wrong".
14. The result is that the petition is dismissed but in the circumstances, there will be no order as to cost.