' ALI NAWAZ A. CHANNA (CHAIRMAN).---This appeal is directed against the order of learned Member/RITU, Islamabad dated 14-6-2003 by which order he directed his Deputy Registrar to file a complaint before the Labour Court for cancellation of registration of appellant union. In order to understand the respective contention of the parties it is necessary to give some brief history of the case.
2. In the establishment of respondents two unions namely Shaheen Airport Services Labour Union and Shaheen Aiport Services Workers Alliance had made applications for their registration of the union. Certificates were granted to them and they were registered as trade unions. The management feeling aggrieved with the registration of the union filed petitions before the High Court bearing Petitions Nos.142 of 1996 and 260 of 1996. The Lahore High Court cancelled the registration of the said two unions. While cancelling the registration of the unions the Lahore High Court refused to accept the plea of the management that I.R.O. Was not applicable to the said unions. Feeling aggrieved by this portion of the order of the High Court the management filed two petitions before Hon'ble Supreme Court bearing Petitions Nos.543 of 1998 and 544 of 1998. The two unions also feeling aggrieved by order of Lahore High Court filed intra-Court appeal in the said Lahore High Court. In the Supreme Court the parties arrived at settlement and the Supreme Court on 3-12-1998 passed a consent order in the following manners:- "after arguing the cases at some length both the parties agree that let the parties be heard by the National Industrial Relations Commission on the question of registration of Union. If any party feel dissatisfied with the decision of the they can approach the High Court if so advised, The High Court will be at liberty to examine the question of applicability of I.R.O. And in doing so that latest view of this Court reported in the case of Civil Aviation Authority Islamabad v. Union of Civil Aviation Employees and another (PLD 1997 SC 781) and other relevant cases decided already by this Court in this connection may be considered in resolving the controversy."
3. After this order none of the parties approached the N.I.R.C. For the purpose for which directions were given by the Supreme Court. Neither the two unions nor the management approached the N.I.R.C. In respect with the directions of the Supreme Court. We have been told that the two intra- Court appeals have also been disposed of by the High Court. It so happened that during the pendency of petitions before the Supreme Court another union namely the appellant filed application for registration of the union. The said application for registration of the union was taken up and heard by Mr. Muhammad Zaman Qureshi, the then chairman and he vide his order dated 18-8-1998 granted the registration certificate to the appellant union. After this order of the Chairman the management through their advocate made application to the said Chairman for deregistration of the union in view of orders of Hon'ble Supreme Court quoted 'above. This application was assigned to Ch. Riaz Ahmed, Member who heard the petition/application and by his order dated 6-8-1999 cancelled the registration of the appellant union. Feeling aggrieved by this order the appellant union filed appeal before the Full Bench. The Full Bench heard the appeal and by its order dated 23-5-2002 held that the order of the learned Member by which he cancelled the registration of the appellant union was not valid as he could not himself cancel the registration of the union but can file a complaint under section 10 of the I.R.O. Before the Labour Court.
Accordingly the appeal was disposed of that the Member may file the complaint before the Labour Court. After this judgment the management again made application under section 10 of the I.R.O.
1969 to the learned Member/RITU for filing complaint before the Labour Court. The learned Member/RITU took up the petition, recorded evidence of both the parties and passed the impugned order dated 14-6-2003 by which he gave directions to the Deputy Registrar to file a complaint before the Labour Court. This appeal is against this impugned order.
4. We have heard the learned advocates for the parties and we have gone through the pleadings of the parties, relevant documents and various orders produced during the evidence and attached with this appeal.
5. Mr. M.A.K. Azmati, learned advocate for the appellant argued that order of learned Member/RITU is illegal, bad in law and cannot be sustained on any principle of law. He argued that the establishment of respondents namely the Shaheen Airport Services is commercial institution and falls within the definition of industry therefore the provisions of I.R.O. Are applicable to it. He attacked the findings of learned Member/RITU by which he held that Shaheen Airport Services is integral part of Shaheen Foundation which is charitable institution therefore provisions of I.R.O. Are not applicable to this institution. He argued that respondent Shaheen Airport Services is involved in.
Commercial transaction and earns huge profits and therefore they are commercial institution. He argued that there is no evidence adduced or produced by the respondents to show that they are doing any charitable work like running schools at no profit no loss basis, running hospital or the similar type of institution which may have the character of charitable organs. He argued that the respondents are providing and selling their services to various airlines and earn huge profits which makes them a commercial institution and also they sell services, they fall within the definition of industry. He argued that the unions have existed in the establishment of respondents but all of a sudden they came with a plea that respondents establishment is a charitable institution and does not fall within the definition of commercial institution or industry and that the provisions of I.R.O. Are not applicable. He has argued that orders of learned Member/RITU are illegal and they may be set aside and registration certificate of appellant union may be continued.
6. On the other hand Mr. F.K. Butt, the learned advocate for the respondents vehemently argued that Shaheen Airport services is an integral part of Shaheen Foundation which is a charitable institution created under the Endowment Act and it is excluded from the provisions of I.R.O. And the provisions of I.R.O. Are not applicable to it and since the provisions of I.R.O. Are not applicable to it, hence no union can legally be registered under the I.R.O. In the establishment of respondents. He argued that Shaheen Foundation was created under the notification of Central Government dated 3-8-1977. He argued that it was created under the Charitable Endowment Act. Shaheen Foundation then according to him expanded its business and created Shaheen Airport Services to provide more services, benefits and relief to the serving and retired armed forces personnel. He argued that three forums have affirmed that Shaheen Airport Services is charitable institution. He referred to the orders of Ch. Riaz Ahmed, Member dated 6-8-1999, the other order of Full Bench dated 23-5-2002 and impugned order of learned Member/RITU. He argued that Ch. Riaz Ahmed and Syed Altaf Hussain Shah, Members have consistently held that the provisions of I.R.O. Are not applicable to the institution of respondents whereas the Full Bench also did not upset the finding of learned members but only held that direct cancellation of the union by the Member was not proper and legal as he was required to file complaint before the Labour Court. He argued that in whole of judgment of the Full Bench there is no iota that provisions of I.R.O. Are not applicable or that finding of learned Member was illegal. He argued that in accordance with three consistent findings of Court, the impugned order of learned Member/RITU is in accordance with law and needs no interference from this Full Bench.
7. We have given anxious consideration to the arguments of learned advocate for the parties. We have gone through the relevant provisions of law and orders produced on record.
8. In order to appreciate the arguments of the learned advocates for the parties it is necessary to give the definition of commercial institution and industry as defined under Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and under Industrial Relations Ordinance, 2002 respectively' which are as under: "Section 2(b) of the Standing Orders Ordinance defines commercial establishment as under: "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, as unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock-exchange, a club, a hotel, a restaurant or any eating house, a cinema or theatre, and such other establishment or clause thereof, as Government may by notification in the official Gazette, declare to be commercial establishment for the purpose of the Ordinance."
' Section 2 (xvii) of the I.R.O., 2002 defines industry as. Under: "industry" means any business, trade, manufacture, calling, service, occupation or employment engaged in an organized economic activity of producing goods of services for sale, excluding those set up exclusively for charitable purposes, operating through public or private donations where "charitable purpose" includes provisions of education, medical care, emergency relief and to other needs of the poor and indigent."
' It will also be appropriate to see here as to which establishment the I.R.O. Is applicable. The applicability of. I.R.O. Is given in S.1(4). I would be advantageous to reproduce this section also which reads as under:
(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed.
(a) in the police or any of the Defence Services of Pakistan;
(b) in any installations or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence, lines of the Railways;
(c) by the Pakistan Security Printing Corporation or the Security Papers Limited or Pakistan Mint;
(d) in the administration of the State other than those employed as workmen by the Railways, Post, Telegraph and Telephone Departments;
(e) by an establishment or institution maintained for the treatment or care of sick, infirm, destitute and mentally unfit persons excluding those run on commercial basis;
(f) by an institution establishment for payment of employee's old-age pensions or for workers' welfare;
(g) as a member of the Watch and Ward, Security or Fire Services Staff or an oil refinery or of an establishment engaged in the production, transmission or distribution of natural gas or liquefied petroleum gas or petroleum products or of a seaport or an airport."
' In the light of these definitions it is to be determined whether the respondent establishment is commercial institution or it is an industry. A heavy reliance has been placed by learned advocate for the appellant on the definition of industry as defined above which contains the words "economic activity of producing goods or service for sale". From this he vehemently argued that the respondent establishment is not only providing the services to the national and international airlines but is also selling the services, hence the establishment of respondents falls within the definition of an industry and therefore the I.R.O. Is applicable to such establishment and the union can operate within such establishment.
8. On the other hand learned advocate for the respondents argued that in fact Shaheen Airport Services is subsidiary and branch of Shaheen Foundation, which Foundation was created by the Government of Pakistan vide Notification No,F.SWA. 6-123/-764 dated 3-8-1977. He argued that Shaheen Aiport Services being the arm of Shaheen Foundation it is beyond the purview and scope of I.R.O. And no union can be established in this department. We have gone through the notification quoted above. There does not seem to be any doubt about the creation of Shaheen Foundation by the Government by notification quoted above. It has to be seen as to for whom this Foundation was created. Its beneficiaries are mentioned in Article (a) which as reads under:
(a) "Beneficiaries" means persons of Pakistan domicile including subjects of the States acceded to Pakistan:--
(i) who have served or are serving the Pakistan Air Force; or
(ii) who have served or are serving as civilians in any organization of the Pakistan Air Force; or
(iii) P.A.F. Personnel who are or have been on deputation to any other department and have retained their permanent lien of service; or
(iv) who having joined any of the P.A.F. Training institutions, are or were invalided out of service on account of any disability, but not any self-induced disease, injury, etc; or
(v) dependents of persons listed in clauses (i) to (iv); and
(vi) any P.A.F. Institution.
(b) "Dependent" means the wife/wives, dependent persons, dependent sons and unmarried daughters of beneficiaries and other relatives who are so prescribed by the Committee of Administration.
(c) "Foundation" means, the Shaheen Foundation, P.A.F.
The aims and objects of the creation of the Foundation are also mentioned in the notification in Article (2) which recites as under: -
2. Aims and Object, Clause I to receive from Government or other bodies or persons any contribution to the Foundation;
(i) to defray all proper costs, charges and expenses of or incidental to the administration of the Foundation;
(ii) to apply the corpus and/or the income of the Foundation for providing relief to the beneficiaries and/or their departments;
(iii) to extend and improve medical facilities to the beneficiaries, as defined above;
(iv) to provide help and scholarships to the dependents of retried or serving beneficiaries for the purpose of education at approved institutions;
(v) to provide any other facility or help which the Committee of Administration may decide, front time to time, and which may be conducive to the general welfare of the beneficiaries;
(vi) to provide lump sum grants at a rate to be decided by the Committee of Administration, in the case of death or injury to any of the beneficiaries;
(vii) to provide for construction of low-cost houses of various categories and their sale on terms and conditions to be decided by the Committee of Administration to the beneficiaries; (viii)to establish and maintain and to aid and promote charitable institutions, hospitals, nursery, homes, orphanages and houses for the disabled beneficiaries, to train and equip the beneficiaries to become self-supporting and decent citizens;
(ix) to open, finance, run, maintain, aid, promote and continue educational and vocational schools, colleges or other similar institutions for the beneficiaries;
(x) to establish, maintain and run boarding houses and residential institutions for the beneficiaries.
The perusal of above list of beneficiaries and aims and objects of the Foundation would reveal that it is undoubtly a charitable institution created under the Charitable Endowment Act. The beneficiaries and aims and objects are so clear as there is no room for doubt that it is created for the welfare of the retired and serving personnel of the armed forces and that it has been created to establish the handicaped and persons and to establish hospitals, schools etc. The respondent has also produced another notification of Government of Pakistan, Department of Civil Aviation Authority by which Shaheen Foundation and allowed to set up Shaheen Airport Services. Para 3 of the said notification is reproduced for ready reference which is as under:-- "The Director General is pleased to accord approval to Shaheen Foundation to set up Shaheen Airport Service for providing handling services to scheduled and non-scheduled international aircraft operating though Karachi. The provisions of such service shall be brought into effect from 1st July, 1981 latest."
' It means that Shaheen Foundation was allowed to expand its business and was allowed to create Shaheen Airport Services to provide loading and unloading and handling services to national and international airlines. The contention of Mr. M.A.K. Azmati, learned Advocate for the appellant that since Shaheen Airport Services is providing services to national and international airlines hence it is selling the services and therefore falls within the definition of industry, has absolutely no force. In view of above two notifications it is now crystal clear that Shaheen Foundation is charitable institution and Shaheen Airport Services is subsidiary organization of Trust. The charitable Trust by selling the services would not be said to be an industry because without selling the services and without earning the profits, they cannot utilize any amount on the welfare of the persons for which the Foundation is created. Every charitable institution sell the services and from the sale it provides the aid and assistance to the needy people. Merely because the Shaheen Airport Services sells their services to the different airlines cannot be said that it is an industry falling within the definition of I.R.O.
10. Mr. M.A.K. Azmati, learned Advocate for the appellant argued that Shaheen Airport Services are employing civil employees therefore it cannot be said that Shaheen Airport Services is the subsidiary organization of Shaheen Foundation. This contention again has no force. There is no bar or embargo on Shaheen Airport Services or Shaheen Foundation or any other charitable institution to employ civil employees. They can get and utilize the services of civilian for the purpose of carrying out their day to day business and for that purpose they cannot be said that Shaheen Airport Services is not charitable branch of Shaheen Foundation. For the purpose of running day to day business they have to employ serving personnel from the Air Force or retired personnel from the Air Force or even retired civil servants. This will not by any stretch of imagination bring the Shaheen Airport Services as the industry covered by the I.R.O.
11. Mr. M.A.K. Azmati, learned Advocate for the appellant vehemently argued that functions of Shaheen Airport Services and Shaheen foundation are totally different from each other, hence Shaheen Airport Services cannot be said to be subsidiary of Shaheen Foundation. As already stated there are two notifications by which Shaheen Foundation was created under the Endowment Act whereas Shaheen Foundation was allowed to set up Shaheen Airport Services. This being so the Shaheen Airport Services is an integral part of Shaheen Foundation and it cannot be said to be separate or different entity. Mr. Azmati has not been able to produce a single document to show that Shaheen Airport Services is not the subsidiary of Shaheen Foundation or D that it is different entity. Mere saying that it is different entity is not sufficient to hold that Shaheen "Airport Services is a separate and different entity.
12. Learned advocate for the respondents argued that Shaheen Airport Services is connected with Pakistan Air force and is linked with Administration of State. In this connection the respondents have produced letter dated 7-3-2002 which is signed by M. Farooq Qari, Air Marshal Vice-Chief of Air Staff and Shahid Zulfiqar, -Air Marshal (Retd), Managing Director Shaheen Foundation, P.A.F. In this letter it has been mentioned that Shaheen Airport Services is service project of Shaheen Foundation of Pakistan Air Force which is a charitable trust set up for the Pakistan Air Force for the welfare and relief of serving and retired personnel of Pakistan Air Force and their dependent/ beneficiaries. The purpose of Shaheen Airport Services has been detailed in this letter which includes to provide construction of law cost houses, to establish maintain and promote charitable institutions, hospitals, nursery, homes, orphanages for disabled beneficiaries and to equip them to become self-supporting citizen, and to open and maintain educational and vocational schools, colleges and institutions for the beneficiaries. There are other functions also of this Shaheen Airport Services. Mr. Azmati, learned advocate for the appellant attacked the veracity of this letter. He argued that this letter is addressed to the Chairman of N.I.R.C. And it is self-defence letter and has no legal value. I am afraid, this argument of learned advocate for the appellant has no force. First of all this letter has been signed by high command army and I cannot think that 'these high command will bluff the Court and fabricate such letter. Such a letter is in nature of certificate which has legal basis and legal value, this letter is legal documents and legal value and therefore it is safely retied upon.
13. The learned advocate for the respondents finally argued that Shaheen Airport Services is an integral part of Shaheen Foundation but it does not have any own and independent existence hence being affiliated with Shaheen Foundation; the provisions of I.R.O. Are not applicable and also that the Shaheen Foundation being purely a charitable trust and Shaheen Airport Services being its integral part does not fall within the purview of I.R.O. And therefore no union can be established either in Shaheen Foundation or in Shaheen Airport Services. He argued that any union registered in this institution is illegally registered union, therefore E order of learned Member/RITU is perfectly legal and is within the four corners of law. In our view this submission of learned advocate for the respondents has sufficient force in view of our above discussion and in view of notifications quoted above. Moreover the previous Member Ch. Riaz Ahmed also held and declared Shaheen Airport Services to be the arm and integral part of Shaheen Foundation which order was not set aside by the Full Bench but only observations were given that learned Member in cancelling the union himself ought to have filed a complaint before the Labour Court for cancellation of union. In principle the finding of learned Member was maintained but only procedure adopted by the learned Member was not approved. It means drat there are two constant findings that Shaheen Airport Services is arm and part and parcel of Shaheen Foundation. This has found further support from the impugned order of learned Member/RUTU who has also held that the provisions of I.R.O.
Are not applicable to Shaheen Airport Services. We have gone though this, order very minutely so also above mentioned two orders. We have not been able to deviate or dissent from the view expressed by the Member. He has given valid and satisfactory reasons for arriving at his decision.
' We have therefore come to a conclusions that the order of learned Member/RITU is perfectly correct, within the four corners of law and does not call for any interference from this Full Bench.
Accordingly the order of learned Member/RITU is maintained and this appeal is dismissed.
' The appeal was dismissed by, short order dated 23-10-2003. The above are the reasons for short orders.