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Appeal No. KAR‑479 of 1971, heard on 16th ‑November 1971.

Ss. 34 & 45 read with S. 37‑Order passed under S. 45‑Not appealable Applications filed under Ss. 34 & 45 but that under S. 45 disposed of and one und‑r S. 34 pending‑Such order not an award‑Appeal lies when case brought within meaning of S. 37 Provisions 'of Civil Procedure Code, 1908‑Cannot be relied upon for purposes of appeal.

Shalimar Silk Mills Mazdoor Union v. Shalimar Silk Mills Ltd., Karachi 1970 P L C 437 and Master Rubber & Tyer Co. Ltd. v. Workers' Union 1970 P L C 285 rel.

Kohinoor Silk Mills Workers' Union v. Kohinoor Sil. Mills Ltd., Karachi 1970 P L C 336 distinguished.

M. S. Yousuf Zai for Appellant.

Mahmood A. Ghani for Respondent.

Date of hearing : 16th November 1971.

This is an appeal against an order of the learned Labour Court No. 1, Karachi, on an application under section 45 of the industrial Relations Ordinance, 1969 (hereinafter called the Ordinance), whereby the learned Court prohibited the con tinuance of the strike and ordered the workers to resume work. The facts giving rise to the appeal briefly put are these.

2. The Management (hereinafter called the respondent) terminated the services of 50 of its workers out of 96, on the ground that there was not sufficient work to keep all the 96 persons in employment. On the other hand, the case of the appellant Union was that the respondent had illegally locked out the workers and, therefore, they were within their right to go on strike.

3. The respondent made an application under section 4 of the Ordinance complaining that the right guaranteed and secured to it under the provisions of the Ordinance had been infringed by the Union, Inasmuch as the Union did not give notice to the respondent under section 26 of the Ordinance. The respondent also made an application under section 45 of the Ordinance requesting the Court to prohibit the strike and order the workers to resume work. The learned Court, considering the balance of convenience of the parties, granted the prayer asked for under section 45 of the Ordinance.

4. Mr. Mahmood A. Ghani, the learned representative for the respondent, has raised a preliminary objection that no appeal is maintainable against an order passed under section 45 the Ordinance. In support of his contention, the learned Repre sentative relied on two of my decisions, Shalimar Silk trills Mazdoor Union v. Shalimar Silk Mills Limited, Karachi (1970 P L C 437) and Master Rubber & Tyre Co. Ltd. v. Workers' Union (1970 P L C 285). It is not necessary to repeat the grounds on which I came to the con clusion in these two cases that no appeal lies.

5. Dr. Yusaf Zai, the learned representative for the Appel lant however, contended that an appeal lies. In this connection, he submitted in the first place, that the impugned order is an award inasmuch as, it disposes of the application under section 34 of the Ordinance. There is not much force in this contention. The fact is that the learned Court has disposed of only the application under section 45 of the Ordinance and the application under section 34 of the Ordinance IS still pending. Dr. Yusuf Zai has relied on the case of Kohinoor Silk wills Workers' Union v. Kohinoor Silk Mills Limited, Karachi (1970 P L C 336), in support of its contention that the Impugned order was an award. In that case the learned Court had disposed of the application under section 45 as well as the application under section 34 of the Ordinance by one and the same order, with the result that no application under section 34 of the Ordinance remained pending for disposal.

6. In the second place, Dr. Yousuf Zai contended that the Court while disposing of the application under section 45 of the Ordinance acted as a civil Court within the meaning of Order XXXIX, rules 1 and 2 of the Civil Procedure Code and therefore, an appeal lies. There is no force in this contention. In order that an appeal may lie under section 37 of the Ordinance, the impugned order has to be an award and not merely a decision. The provisions of the Civil Procedure Code cannot be relied upon for the purposes of an appeal. The Court cannot assume jurisdiction to hear appeal unless the same is conferred C by a statute. In order that an appeal may lie a party has to bring its case within the meaning of section 37, sub‑clause (3) of the Ordinance. I am of the view, for the reasons that I have given in my two earlier decisions, that the impugned order is only a decision and not an award and, therefore, no appeal lies. The appeal is dismissed on this ground.

Appeal dismissed.

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