This petition is directed against the order dated 17th August, 1976, whereby the appeal filed by respondent No. 2 was accepted by the Appellate Tribunal and the decision of the Labour Court allowing the workers, the corporation and conveyance allowances was set aside.
20. The facts giving rise to it are that the petitioner-Union applied on 17th January, 1976, to the Punjab Labour Court 111, Lyallpur, for the .Conferment of various rights, under section 34 of the Industrial Relations Ordinance. At the time of hearing, the parties are stated to have reached a compromise to get settled only the dispute about the corporation allowance and the conveyance allowance. The Labour Court accepted the petitioner's plea and vide its order dated 12th April, 1976, held that the petitioner is entitled to the two allowances. Respondent No. 2 was also directed to pay the same in accordance with the list Exh. P. 1 within 15 days of the order.
3. Respondent No. 2 challenged that order in appeal It came up before respondent No. 1, the Appellate Tribunal, who held that the respondent-institution, being not an industry for the purpose of Industrial Relations Ordinance, was not liable to the jurisdiction of the Labour Court. It also rejected the objection raised by the petitioner that no appeal lay as according to it, the application of the petitioner before the Labour Court fell under section 32(1-A) and not under section 34 of the Industrial Relations Ordinance. The petitioner now challenges the above order.
4. It is contended by the learned counsel that the application had been made under section 34 and consequently no appeal lay against the order passed by the Labour Court. Reliance was placed on section 37 of the Industrial Relations Ordinance which provided an appeal, at the relevant time, only against an award. The 'award' is defined in section 2(ii) of the Industrial Relations Ordinance as the determination by a Labour Court, Arbitrator or Appellate Tribunal of industrial dispute or any matter relating thereto and includes an interim award. The 'industrial dispute' is defined in section 2(x111). It could be about terms of employment or conditions of work or enforcement of any right guaranteed or secured to any person by or under any law other than the Industrial Relations Ordinance or any award or settlement for the time being in force. The term 'settlement' is defined under clause (xxiv) of section 2. It includes a settlement arrived at in the course of conciliation proceedings or an agreement between an employer and workman arrived at otherwise. A copy of written agreement is required to be sent to the Provincial Government, the conciliator and such other person as prescribed.
5. The award could be given only if the proceedings had been taken in accordance with section 43 read with sections 26, 28, 29, 30 and 31 of the Industrial Relations Ordinance. According to section 43, no industrial dispute shall be deemed to exist unless it had been raised in the prescribed manner by a Collective Bargaining Agent or an employer. Section 26 provides for negotiations by the Collective Bargaining Agent and the employer regarding differences and disputes. If the dispute remains unsettled, a notice of strike or lock-out is to be given. Section 28 lays down 14 days period for lock-out or strike. Sections 29 and 30 deal with conciliation proceedings after notice.
Section 31 provides for arbitration if conciliation fails. It is thereafter that the industrial dispute can be brought before the Labour Court under section 32(1-A).
6. It was argued that as there was no industrial dispute there could have been no award in the case in hand and consequently the order of the Labour Court could not be considered to have been passed under section 32(1-A). Tire learned counsel for the respondent-Institution submitted that an application under section 34 could be made only if the right required to be implemented had been guaranteed by or secured under any law or any award, or any settlement. He submitted that the two allowances claimed by the petitioner had never been guaranteed by or secured under any law, award or settlement and thus no application under section 34 could be made. In reply, the learned counsel for the petitioner relied on Annex. `F' which has been submitted along with the replication at the argument stage. A copy of it was also given to the learned counsel for the respondent-institution, practically when the arguments were coming to an end. The learned counsel relied on Serial No. 10 which reads as under :-
7. Annexure 'F' appears to be the minutes of a meeting which took place between the Union and the Management on 12th May, 1975. The item referred to, however, does conditionally allow to the petitioner the allowances directed to be paid by the Labour Court. The stipulation about condition was that if the Union produced any letter of the Government under which a Corporation' had been formed in Lyallpur, the management shall pay corporation and travelling allowance.
8. Admittedly no such letter had been placed before the Labour Court. The Labour Court however, observed that the Lyallpur Municipality had been converted into a Municipal Corporation by the Local Government Act, 1975. This is supported by section 6(4) and Ist Proviso to section 8(a)(v) of the Local Government Act. There was thus no need to supply any letter. The respondent-institution has not denied the genuineness of this document. It is an agreement between the Management/respondent and the petitioner Union. This agreement is covered by the `settlement' and is final-JA Consequently, there was a right under a settlement and the same could be enforced under section 34 of the Industrial Relations Ordinance.
9. The next question is whether the above settlement can answer the requirements of an award so as to have become appealable under section 37 of the Industrial Relations Ordinance. An 'award' as defined in section 2(ii) of the Industrial Relation Ordinance is a determination by a Labour Court, Arbitrator or Appellate Tribunal of an Industrial Dispute or any matter relating thereto. Admittedly, the settlement referred to above is not such a determination and hence it was not appealable under section 37 of the Industrial Relations Ordinance.
10. The learned counsel for the respondent then submitted that as the Tribunal held that the Labour Court had no jurisdiction against the respondent, being neither an `industry' nor an `establishment', as defined in section 2(ix) of the Industrial Relations Ordinance, the decision of the Labour Court sought to be enforced was void and inoperative and should not be maintained. The precise contention raised was that if the Labour Court had no jurisdiction in the matter, the declaration by this Court, that the order of the Tribunal is void, would leave another void order of the Labour Court in the field, to confer illegal gains on the petitioners, thus causing injustice and unlawful loss to respondent No. 2.
11. Section 34, under which the petitioner applied to the Labour Court, confers that right only on a Collective Bargaining Agent or an employer. 'Collective Bargaining Agent' has been defined in section 2(v) as under :- " `Collective Bargaining Agent' in relation to an establishment or industry, means the trade Union of workmen which, under section 22, is the agent of the workmen in the establishment or, as the case may be, industry, in the matter of collective bargaining."
A `workman' according to section 2(xxviii) is a person who is employed for hire or reward in an industry or establishment but who does not fall in the definition of employer. `Industry' is defined in section 2(xiv) to mean any business, trade, manufacture, calling, service, employment or occupation. Admittedly, the respondent-institution cannot be called a -business, trade or manufacture. Does it then fall under any of the other types ?
12.The respondent-Institution has been established under the West Pakistan Employees' Social Security Ordinance, 1965 (Ordinance X of 1965). According to the preamble, the Ordinance had been made to provide benefits to certain employees or their dependents in the event of sickness, maternity, employment, injury or death and for matters ancillary thereto. Under section 3 the Government is obliged to establish by notification an Institution to be called the Employees' Social Security Institution. The Institution is a body corporate having perpetual succession and common seal with a power to hold and dispose of movable and immovable property. Its management vests in the Governing Body as detailed in section 5. The power and functions of the Governing Body are given in section 6.
13. The respondent-Institution does not carry on any trade or business and does not work for gain.
Its finances come from the contributions made by the 'employers' as defined in the Ordinance and from grants, donations and gifts made by Government, local authority or other body as provided in section 10. The Institution is also obliged to provide machinery to secure contributions and eliminate evasion. The functions of the Institution are varied as provided in various sections. The benefits enumerated in sections 35 to 44 of the Ordinance are, however, available to the 'secured persons' or their named dependants. These include sickness benefit, maternity benefit, death grant, medical care during sickness and maternity, injury benefit, disablement pension, disablement gratuity, survivor's pension death grant in case of death while in receipt of injury benefit or total disablement pension, and medical care in the case of employment injury.
14. The above narration of facts about the respondent Institution would show that it is not a business, trade or manufacture. It is on the other hand, a service as it provides medical care etc. It is in part also an employment as it has to collect and receive contributions from 'employers' and has also to receive returns, check employer's books and do other administrative functions. It also provides benefits other than medical care.
15. The learned counsel for the petitioner relied on K. G. Old v. Presiding Officer (PLD 1976 Lah. 1097) in which a similar point came up for consideration. The question arising in that case was whether certain educational institutions were also covered by the term 'Industry' as defined in section 2(xiv) of the industrial Relations Ordinance. Shaft-ur-Rehman, J. Who delivered that very well considered and illuminating judgment, observed as under : "33. It is, therefore, clear that given their plain ordinary dictionary meaning words used to define Industry, words which have been always, and are even now, a part of the definitions, viz. Business, Trade, Manufacture, Calling, Service, Occupation are of the widest amplitude and include in their sweep every conceivable human activity which is not casual, recreational or a past time. Literal construction certainly leads to that end and to no other. However, one accepted principle of interpretation already reproduced above is that use in a statute, amending or otherwise, of a term which has received a judicial construction gives rise to the presumption that the term is used in that sense.
52. The upshot of the entire discussion is that the use of the expression 'Business, Trade, Manufacture, Calling, Service, Employment or Occupation' in the definition of Industrial Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organized and is systematic depending substantially, if not entirely, on the co-operation between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or provision of material services.
16. I am in full agreement, with great respect, to the observations of his Lordship reproduced above.
As said above the respondent-Institution too is providing material services to the workmen. Had this collective organization not been there, every employer would have been obliged to provide all or some of these services to their workers. The services rendered and functions performed by this Institution are thus necessarily incidental to the production and distribution of goods. Looked at from that angle also the Institution is an 'industry' as defined in the Industrial Relations Ordinance.
The Labour Court thus acted lawfully and with jurisdiction in passing the impugned order.
For the reasons given above, this petition is allowed. The impugned order of the Tribunal is declared to be without lawful authority and of no legal effect. The result is that the order of the Labour Court shall hold the field and be implemented. As the question involved was not free from difficulty, there will be no order as to costs.