SH. HAKIM ALI, J. --- Common questions of law and facts have been raised in both these writ petitions i.e. W.P. No. 2833-2006/BWP (Muhammad Saeed Bhatti Vs. Presiding Officer and three others) and W.P. No. 2835- 2006/BWP (Muhammad Fayyaz Bhatti vs. Presiding Officer and three others). Therefore, I have decided to pass a single order for the disposal of both these writ petitions.
Main order shall be considered to have been passed in W.P. No. 2833- 2006/BVVP.
2. Succinctly, the facts as narrated and stated by learned counsel appearing on 'behalf of the parties are that Muhammad Saeed Bhatti (W.P. No. 2833-2006/BWP) was employed as Beldar on 4.12.1999, while Muhammad Fayyaz Bhatti (W.P. No. 2835-2006/BWP) was appointed as Steno typist on 17.9.1995 with Government Employees Cooperative Housing Society Limited, Bahavvalpur.
Muhammad Saeed Bhatti was terminated from that service on 3.1.2005, while Muhammad Fayyaz Bhatti was directed to leave the post of Steno typist through a notice issued on 18.2.2005 i.e.f.
15.2.2005. After the termination orders were passed, the writ petitioners had approached the authority under Payment of Wages Act, 1936, Bahawalpur for their claims, which are re-produced as below:--- W.P. No. 2833-2006/BWP.
(i) One month notice payRs. 2,300.00
(ii) 18 days salary for the month of January and February, 2005.Rs. 4,600.00
(iii) Encashment leave wages for 280 days.Rs. 23,000.00
(iv) Gratuity total service 6 years one month.Rs. 13 800.00
(v) Special dearness allowance 15% and special relief allowance 15%Rs. 50,370.00
(vi) Conveyance allowance.Rs 10,220.00
(vii) Medical allowance. Rs. 15,320.00 W.P. No. 2835-2006/BWP.
(i) One month notice pay.Rs. 3,700.00
(ii) 18 days salary for the month of February 2005.Rs: 2,232.00
(iii) Encashment leave wages for 456 days.Rs. 55,500.00
(vi) Gratuity total service 9 years 5 months.35,100.00
(v) Special dearness allowance 15% and special relief allowance 15%.Rs. 1,25,430.00
(vi) Conveyance allowance.Rs 23,730.0.0
(vii) Medical Allownce 38420.00 Medical allowance. Rs. 38,420.00 3. The authority under Payment of Wages Act, 1936 had allowed the claims of writ petitioners to the extent of payment of salary plus three times compensation, while the authority refused to grant encashment, leave,- gratuity, special dearness allowance, conveyance allowance and medical allowance. This order passed on 16.9.2006 was challenged before the learned Presiding Officer, Punjab. Labour Court No. 8. Bahawalpur by both the parties filing of appeals. The appeals of both these appellants were decided by the aforementioned Presiding Officer of the Court on 3.11.2006. Learned Presiding Officer held that Authority under the 'Payment of Wages Act, 1936, had no jurisdiction to entertain applications, therefore, appeals No. 8 and 9 of 2006-were dismissed while appeals No. 10 and 11 Of 2006 were granted and authority was directed to return application of both present writ petitioners to return the claim for its due...
Presentation before competent forum. Hence, these writ petitions.
4. Learned counsel for the petitioners submits that Government Employees Co-operative Housing Society Limited, Bahawalpur is an "Establishment" according to Section 2(xi) of Industrial Relations Ordinance, 2001. Because in "Establishment" the word "Society" is also found included therein.
Therefore, the Authority for Payment of Wages Act was competent to pass order and grant that above -noted claims of the writ petitioners. He has also referred to Section 3 (e) and sub-section
(4) of aforesaid Section 3 of the Co-operative Societies Act, 1925, to contend that "Society" means a society registered or deemed to have been registered under this Act and a "Housing Society" means a society formed with the object of providing its members with dwelling houses on conditions to be determined by its bye-laws. By this definition of "Society" and also of "Housing Society" contained in sub-section 4 of Section 3 of the Co-operative Housing Society Act, 1925 the Government Employees Housing Society formed under the Co-operative Societies Act, 1925 has to be governed by the provisions of Industrial Relations Ordnance, 2002 also. And the proceedings before the Authority of Payment of Wages Act, 1936 were rightly undertaken by writ petitioners. Learned counsel has also supported his arguments by referring to (PLJ 1978 Bahawalpur 568) Project Director, Cooperative Karkhana, Alat-e-Zari, Bahawalpur vs. Presiding Officer, PB, Labour Court, No. 4 Multan & 6 others. He has also placed reliance upon decisions reported in (NLR 1981 Labour 1) Islamabad Club vs. Muhammad Aslam, etc. And (1995 PLC 655) The Cooperative Model Town Society vs. Punjab Labour Appellate Tribunal and 3 others. Accordingly, the version adopted by the petitioners is that they were to be governed by the provisions of Industrial Relations Ordinance, 2002 read with the Payment of Wages Act, 1936 and the West Pakistan (Standing Orders); Ordinance. (VI of 1968). The refusal to accept the claim the authority and thereafter decision of Punjab Labour Court that the case of petitioners was not falling within the parameters of Industrial Relations Ordinance, 2002 was, therefore, illegal and unlawful.
5. Conversely, learned counsel appearing on behalf of respondents No. 3 and 4 submits that to gain success for the acceptance of 'their claims, writ petitioners are bound to prove that the Society in question has fallen within the definitions of Section 2 clauses (b) and (f) provided for "Commercial Establishment" and "Industrial Establishment" by West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As per learned counsel for respondents, the Government Employees Co-opetative Housing Society Limited, Bahawalpur is not an industrial or commercial establishment because twenty or more workmen are not employed therein. Moreover, it cannot be considered as commercial establishment as its business is not of advertising, commission or forwarding or a commercial agency or including therein a clerical department of a factory or of any industrial or commercial undertaking. It cannot fall within the definition of "Industrial Establishment" as it is not an industry, factory, railway, establishment of a contractor or establishment of person, who directly or indirectly employees workman in connection with any construction. Therefore, the writ petitioners are not entitled to obtain benefits of these Act and Ordinance.
6. Arguments heard, record and provision of the law minutely examined as referred to by both the parties. Before dealing with the legal position of the case, I would like to discuss the decisions referred to by the learned counsel for the petitioners. PLJ 1978 Bahawalpur 568 (Project Director, Co-operative Karkhana, Alat-e-Zari, Bahawalpur vs. Presiding Officer, PB, Labour Court, No. 4 Multan & 6 others) admittedly has dealt with a case of Employees of Cooperative Karkhana, Alat-e-Zari (Agricultural Implements), Bahawalpur and was admittedly an industrial establishment, whose purpose has been summarized in para. No. 13 of the aforementioned judgment, which is reproduced as follows:--- "Thus it will be seen that in their operating technique and organization structure, cooperatives closely resemble other types of business and have similar motives. They are not charitable institutions. They may manufacture goods and sell the same for profits. They may render better and cheaper service to the consumers than other producers of the same article.
But they retain their essential features of industrial or commercial establishment,"
7. From the above-quoted para., principle deducible is that it is not the Co-operative Society but the nature of work which has to determine its status and character for the purpose of jurisdiction of the authority concerned. From the nomenclature of the above Cooperative Society, it is evident that it was dealing with the manufacturing process and sale business of agricultural implements.
Therefore, (PLJ 1978 Bahawalpur 568) is not applicable to the facts and .Circumstances of the present case. In the same way (NLR 1981 Labour 1) referred to by the learned counsel for the petitioner is also not applicable, as in the case, the question was raised as to whether West Pakistan. Industrial and Commercial (Standing Orders) Ordinance, 1968 was applicable to the employee of Islamabad Club or not? In that judgment it was held that the objection to this effect that aforementioned (Standing Orders) Ordinance of the year 1968, was applicable to Islamabad Capital or not, having not been raised at any lower stage, during the proceedings before Labour Court or in the High Court, such contention was not entertainable before the Hon'ble Supreme Court. Therefore, this judgment is also not relevant of the decision of this writ petition. The third judgment referred to by the learned counsel for the petitioner is ( /995 PLC 655). In that case also Co-operative Society was plying buses and one of the Bus Conductor, who was terminated by Co- operative Society, had approached the Labour Court as workman and his grievance petition before the Labour Court was held competent. In this case also, as the Society was indulged in buses plying business so, it was commercial establishment. Therefore, due to the nature of the business, which .
Was being performed by the Society, that had entitled an employee (Bus Conductor) to file grievance petition. In other words, before Industrial Relations Ordinance, 2001, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968) or the Payment of Wages Act, 1936. Are to be held applicable, it has to be determined as to whether the job/work of the employer, falls within the definition of Industrial Relations Ordinance and the other above- mentioned Ordinance and Act. To invoke the provision of the,Payment of Wages Act, 1936, it is necessary according to sub-section (4) of Section 1 of the Payment, of Wages Act, 1936 that employer must be a factory, industrial establishment or commercial establishment. If all these three essentials are not present the employer would not fall within the definition of employer and the employee/workman would not be able to file grievance petition against his employer. To determine the nature of work, which was being performed by Government Employees Co- operative Housing Society Limited, Bahawalpur, it may be mentioned that learned Presiding Officer in his judgment/order has clearly held that the aforementioned Co-operative Society was not a Factory/industrial or commercial establishment. This finding of fact was actually rendered after considering all the evidence produced on the record, by the learned Presiding Officer, Punjab Labour Court No. 8, Bahawalpur. Learned counsel for the petitioner has not been able to controvert this finding of fact that Government Employees Co-operative Housing Society Limited, Bahawalpur was not working as a factory. He has not established from the record that it was an industrial or commercial establishment. The work which was being performed by the aforementioned Co- operative Housing Society has clearly been mentioned in the decision of learned, Presiding Officer that the Society had obtained a Chunk of land from the Government, and thereafter had allotted it to its members. There was no job being done of the nature of factory, industrial or commercial establishment, involved in the case of Government Employees Co-operative Housing Society Ltd., Bahawalpur. According, to .PLD 2002 Supreme Court 452 (Town Committee, Gakhar Mandi vs. Authority under the Payment of Wages Act, Gujranwala and 57 others) the Hon'ble Supreme Court had clearly held that before the provisions of Payment of Wages Act, 1936 could be attracted the employer must be a factory, to invoke the provision of Section 1 of the Payment of Wages Act, 1936 (un-amended).. In the aforementioned case, the employees of Town Committee Gakhar Mandi were not considered as employees of a factory. In NLR 2006 TD (Labour) 147 (Tehsil Municipal Administration Faisalabad City vs. Muhammad Saleem). It was held that to apply the provision of Section 2 (iv) of the Payment of Wages Act, 1936, the employer must be a factory as defined in Section 2(j) of the Factories Act, 1934 and for the definition of factory manufacturing process was an essential ingredient, as Tehsil Municipal Administration, Faisalabad was not a factory, was not a factory, therefore, it was held that Tehsil Municipal Administration could not be deemed as employer (factory). According to Section 2(b) "commercial establishment" and clause (f) "industrial establishment" the case of the petitioner does not fall within those clauses. Government Employees Co-operative Housing Society Limited. Bahawalpur is not an establishment in which the business of advertising, commission or forwarding is being conducted, it is not a commercial agency, it is not a clerical department of a factory, industrial or commercial undertaking So, the definition of Section 2 (b) "commercial establishment": is not also applicable to the aforesaid Society. Same is the case with the definition applicaility of Section 2(f) of the West Pakistan (Standing Orders) Ordinance, 1968 under Which the Society is not a "factory' as defined in clause (j) of the Section 2 of the Factories Act, -1934 and nor it is Railway as defined in clause (iv) of Section 3 of the Railway Act nor an establishment of a contractor, who directly or indirectly employ workman nor an establishment of a person who directly or indirectly perform the business of construction of industries. Section 4 (a) of West Pakistan (Standing Orders) Ordinance (VI of 1968), is worth consideration for the applicability of the above-noted Ordinance of 1968. For its ready examination, it is reproduced below:--- "4(a) every industrial establishment or commercial establishment wherein twenty or more workmen are employed, directly or through any other person whether on behalf of himself or any other person, or were so employed on any day during the preceding twelve months; and
(c) such classes of the industrial and commercial establishments as Government may, from time to time, by notification in the official Gazette, specify in this behalf'.
8. From this section, it is apparent that every "industrial or commercial establishment wherein 20 or more workmen are not employed, or the Government has not notified any such establishment to be as such establishment, the above-mentioned Ordinance of 1978 is not applicable. Seen from this angle also, the petitioners have failed to prove on the record that 20 or more workmen were employed by the Government Employees Co-operative Housing Society Limited, Bahawalpur.
9. Therefore, keeping in view the definitions of "factory" "commercial establishment" and "industrial establishment", the Government Employees Co-operative Housing Society Ltd., Bahawalpur is not covered with the above definition clauses of the above-mentioned Acts and the Ordinance. The decision of Presiding Officer, Punjab Labour Court No. 8, dated 3.11.2006, therefore, cannot be held illegal or unlawful. The writ petitions are accordingly dismissed with no order as to costs. .