' SH. HAKIM ALI, J.--- Common questions of law and facts have been raised in both these writ petitions i,e, Writ Petition No,2833 of 2006/BWP (Muhammad Saeed Bhatti v. Presiding Officer and 3 others) and Writ Petition No,2835 of 2006/BWP (Muhammad Fayyaz Bhatti v. Presiding Officer and 3 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 Writ Petition No,2833 of 2006/BWP.
2. Succinctly, the facts as narrated and stated by learned counsel appearing on behalf of the parties are that Muhammad Saeed Bhatti (Writ Petition No,2833 of 2006/BWP) was employed as Beldar on 4-12-1999, while Muhammad Fayyaz Bhatti (Writ Petition No,2835 of 2006/BWP) was appointed as stenotypist on 17-9-1995 with Government Employees Cooperative Housing Society Limited, Bahawalpur. Muhammad Saeed Bhatti was terminated from that service on 3-1-2005, while Muhammad Fayyaz Bhatti was directed to leave the post of Stenotypist through a notice issued on 18-2-2005 w,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 reproduced as below:-- Writ Petition No,2833 of 2006/BWP (i)One month notice pay Rs.2,300 (ii)18 days salary for the mouth of January and February, 2005.Rs.4,600 (iii)Encashment Leave Wages for 280 days. Rs.23,000 (iv)Gratuity Total Service 6 years one month Rs.13,800 (v)Special dearness allowance 15% and special relief allowance 15%Rs.50,370 (vi)Conveyance allowance Rs.10,220 (vii)Medical allowance Rs.15,320 Writ Petition No.2835 of 2006/BWP (i)One month notice pay Rs.3,700 (ii)18 days salary for the month of February, 2005. Rs.2,232 (iii)Encashment Leave Wages for 456 days. Rs.55,500 (iv)Gratuity Total Service 9 years 5 month Rs.35,100 (v)Special dearness allowance 15% and special relief allowance 15%Rs.1,25,430 (vi)Conveyance allowance Rs.23,730 (vii)Medical allowance Rs.38,420 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 through 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 Nos.8 and 9 of 2006 were dismissed while Appeals Nos.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 Cooperative Housing Society Limited, Bahawalpur is an "Establishment" according to section 2(xi) of Industrial Relations Ordinance, 2002 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 the above noted claims of the writ petitioners. He has also referred to sections 3(e) and subsection (4) of aforesaid section 3 of the Cooperative 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 subsection (4) of section 3 of the Cooperative Housing Society Act, 1925 the Government Employees Housing Society formed under the Cooperative Societies Act, 1925 has to be governed by the provisions of Industrial Relations Ordinance, 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 Project Director Cooperative Karkhana, Alat-e-Zari, Bahawalpur v. Presiding Officer, P.B. Labour Court No,4 Multan and 6 others PLD 1979 BJ 1. He has also placed reliance upon decisions reported in Islamabad Club v.
Muhammad Aslam and others 1982 SCM R 126 and The Cooperative Model Town Society v. Punjab Labour Appellate Tribunal and 3 others 1995 PLC 655. Accordingly the version adopted by the petitioners is that they were to be governed by the provisions Industrial Relations Ordinance, 2002 read with the Payment of Wages Act, 1936 and the West Pakistan (Standing Orders), Ordinance, No,VI of 1968. The refusal to accept the claim by 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 Nos.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 clause (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 Cooperative 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 petitioner Project Director Cooperative Karkhana, Alat-e- Zari, Bahawalpur v. Presiding Officer, P.B. Labour Court No,4 Multan and ,6 others PLD 1979 BJ 1 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 organizational structure, cooperatives closely resemble other types of business and have similar motives. They are not charitable institution. 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 Cooperative 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, PLD 1979 BJ 1 is not applicable to the facts and circumstances of the present case. In the same way 1982 SCM R 126 referred to by the learned counsel for the petitioner is also not applicable, as in that 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 Honourable Supreme Court. Therefore, this judgment is also not relevant for the decision of this writ petition. The third judgment referred to by the learned counsel for, the petitioner is 1995 PLC 655. In that case also Cooperative Society was plying buses and one of the Bus Conductor, who was terminated by Cooperative 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, '2002, West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance No,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 subsection (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 Cooperative Housing Society Limited, Bahawalpur, it may be mentioned that learned Presiding Officer in his judgment/order has clearly held that the aforementioned Cooperative 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 beep able to controvert this finding of fact that Government Employees Cooperative Housing Society Limited, 13ahawalpur 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 Cooperative 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 Cooperative Housing Society Ltd. Bahawalpur. According to Town Committee, Gakhar Mandi v. Authority under the Payment of Wages Act, Gujranwala and 57 others PLD 2002 SC 452 the Honourable 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 (unamended). In the aforementioned case, the employees of Town Committee Gakhar Mandi were not considered as employees of a factory.
In Tehsil Municipal Administration Faisalabad City v. Muhammad Saleem PLD 2006 SC 166 = 2006 PLC 226. 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, 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 Cooperative 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 applicability 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 Railways 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 1(4)(a) of West Pakistan (Standing Orders)
Ordinance No,VI of 1968, is worth consideration for the applicability of the above noted Ordinance of 1968. For its ready examination, it is reproduced below:-- "1(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 1968(?) is not applicable. See from this angle also, the petitioners have failed to prove on the record that 20 or more workmen were employed by the Government Employees Cooperative Housing Society Limited, Bahawalpur.
9. Therefore, keeping in view the definition of "factory" "commercial establishment" and "industrial establishment", the Government Employees Cooperative 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.