1. ' MRS. YASMIN ABBASEY, J.--- By notification, dated 15-12-2005 the Government of Sindh had extended the area of application of Sindh Employees Social Security Ordinance, 1965 to the educational institutions and had called upon these petitioners' institutions to get their employees registered under the Social Security Scheme and to submit a statement to the office of Social Security every month regarding the contribution schedule showing details of social security contribution in respect of each employee along with the amount of social security contribution payable at 7% of the salaries/wages paid or payable to them of each succeeding month.
2. ' Being aggrieved with this notification and notice dated 20-1-2006 received in that context, these three constitutional petitions bearing Nos.D-165 of 2006, D-1478 of 2003 and D-2108 of 1996 have been preferred. Irrespective of other grounds taken by each of the petitioners separately in the petitions, the main ground urged by all of them in that Social Security Ordinance of 1965 is not applicable to educational institutions as the educational institutions does not fall within the ambit of industrial, commercial or agricultural organization as defined in section 2(ii) of the Ordinance, 1965 and the word "otherwise" as used in the section is to be read ejusdem generis with the words "industrial, commercial and agricultural".
3. ' It is argued by learned counsel for the petitioners that the activities as carried out in the educational institutions does not come within the purview of any business, trade manufacturing and producing any material product but are of spiritual character just to promote the status of a society to upbring the educational level, therefore, it cannot be in parallel to the establishment functioning exclusively in business sector. To them term "establishment" as used in the Ordinance of 1965 is limited to an organization functioning in industrial, commercial or agricultural capacity or otherwise of the same nature of business.
4. ' Learned counsel for the petitioners has referred the case of Employees' Union, Jamia, Karachi v.
5. Registrar of Trade Unions, Sindh and 2 others 1981 PLC 403 stating that services rendered by industrial, commercial and agricultural organization have been differentiated with those of educational institutions.
6. ' In view of the observation made in the cited judgment service of industrial, commercial and agricultural units have been termed as material service, whereas in respect of service rendered by university it is observed that:-- "The service rendered by the University entirely depends upon the contribution of the learning, research, study, knowledge of the men of letters. It is this distinctive character of the University, which absolutely distinguish it from institutions, providing material service. This absence of material nature of service keeps the University and the Board out of the pale of the word Industry.
7. Education, is not a service it is a duty. Its acquirement is no longer voluntary but undisputedly it is being made compulsory. The Universality and cosmopolitan nature of education keeps it completely distinct and distinguished from material service."
8. ' The question involved in the referred case was that whether the employees of University, who got their union registered under Trade Union Act, on their termination from service will be termed as an employee of an industry as defined in Industrial Relations Ordinance, 1969 and their grievance petition before Labour Court under Industrial Relations Ordinance, 1969 would be maintainable. It was observed that University and Board cannot be termed as industry within the meaning of Industrial Relations Ordinance, 1969 for the purpose of filing petition before Labour Court, and thus, is not relevant to the present case as the observation made in the case of Employees' Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 others (supra) was with reference to the jurisdiction of Court only. In another judgment reported as Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC 589, wherein an employee of a educational institution on his termination from service approached to Labour Court under section 25-A of Industrial Relations Ordinance, 1969, as it went up to the Honourable Supreme Court and in that context it was observed that the educational institution does not fall within the definition of industry. The question of application of Social Security Ordinance for the facility provided under the Ordinance, as pleaded by respondent, was not subject-matter of these petitions.
9. ' To examine the question that what does the "establishment" means the very preamble of Social Security Ordinance would be relevant. It says that the scheme of social security is introduced through this Ordinance for providing benefit to certain employees or the dependents of an institution in the event of sickness, maternity employment injury or death and for matters ancillary thereto. By using the word "institution" it has enlarged the area of its application. Thus, to avail the benefits of scheme an employee who may not necessarily be to the organization relating to the industrial, commercial or agricultural but any worker of any organization, who is employed for carrying out a service must be given equivalent status for protection of his service benefits. It is observed in the case of Holy Family Hospital and another v. Government of Sindh and another 1985 SCMR 593 that the word "service" as contained in the definition of workers' Children (Education)
10. Ordinance, 1972, wherein almost the same issue was raised, it was held that:--- "The word "service" as contained in the definition of "establishment" is not restricted to "service", which results in profit or gain, but would embrace service of various kinds."
11. ' In the same report it is further observed that:- "The education cess is charged for the benefit of education of workers' children. Such object indeed is beneficial and has nothing to do whether the service rendered by the workers results in yielding the profit for the establishment or not. In accordance with the accepted principle of interpretation while dealing with a welfare and beneficial legislation, which indeed the Ordinance in question is, the term "establishment" is to be given wide and liberal interpretation in keeping with the object of the legislation so as to advance the remedy and suppress the mischief or else it would defeat the very legislative intent."
12. ' With this observation the petitions filed by Holly Family Hospital against the levy of income tax were rejected.
13. ' Advancing his argument elaborating the definition of "establishment", it is contended that the word "otherwise" must be construed as ejusdem generis with the words immediately proceeding to it.
14. ' Conversely learned counsel for the respondent referring to a judgment reported in 2004 PLC 381 also referred by the learned counsel for the petitioner has argued that a Bench of this Court had already observed that schools are establishments within the meaning of Social Security Ordinance and fall within the purview of Ordinance and with this observation the petition filed by St.
15. Conventure High School, Hyderabad was dismissed. It is contended that the observation made by the Bench of this Court in view of law laid down in the case of Multiline Associates v. Ardeshir Cowasjee and 2 others PLD 1995 SC 423 are of binding nature and in case of a contrary view the proper course would have been a request to be made to the learned Chief Justice for constitution of a larger bench instead of giving conflict findings, which is bound to create confusion. Although no reply has been given by the learned counsel for the petitioner to the arguments advanced as to the binding effect of an observation of a Division Bench on another Bench of the same Court but has referred the case of Don Basco High School Empress Road Lahore v. Director, Social Security and 2 others 2005 PLC 110, wherein a contrary view has been taken but at the same time it is admitted by him that this judgment was challenged before the Honourable Supreme Court of Pakistan in C.P. No,885 of 2000 and by order, dated 29-9-2005 the impugned judgment of High Court was set aside and the appeals were disposed of by remanding the petitions to the Social Security Institution, Punjab, Lahore for decision afresh in terms as indicated in the order, hence after setting aside this judgment of Honourable Lahore High Court, the only judgment in field is of this Court reported in St. Bonaventure's Boys High Schools Tilak Incline and Qasimabad, Hyderabad through Authorized Representative and another v. Province of Sindh through Secretary Labour and Transport, Government of Sindh and 2 others 2004 PLC 381. The perusal of Multiline Associates v.
16. Ardeshir Cowasjee and 2 others (supra) further reveals that the rule of interpretation of law and the applicability of a law in a particular and general field has also been discussed therein, which reads as under:--- "Cardinal principle of interpretation of statutes is that a law should be interpreted in such a manner that it should be saved rather than destroyed. The Courts should lean in favour of upholding constitutionality of legislation and it is, therefore, incumbent upon the Courts to be extremely reluctant to strike down laws as unconstitutional. This power should be exercised only when absolutely necessary, for injudicious exercise of this power might result in grave and serious consequences. In support of the proposition reference can be made to the case of Province of East Pakistan v. Sirajul Huq Patwari PLD 1966 SC 854. The same principle of interpretation shall apply to subordinate legislation including Regulations as in this case."
17. ' From the above proposition what can be gathered is that the intention of law-makers in all respects should be saved as while construing any law, it is presumed that it is legislated for the benefit of the society as a whole to which it applies and in this scenario we have to examine that whether extension of area of protection to employee of different institution under Social Security Scheme is permissible or not. Observations made in AIR Assam 22 are very much beneficial which says that:-- "Where in a social legislation the Legislature intends to give protection or confer a privilege on a class or persons which it otherwise did not possess, the legislation should be taken to apply ordinarily to the entire class unless there was some saving or exception meant by the terms of the legislation itself. The mere fact that there is a suit or proceeding pending against any member of the class should not in the usual course deprive him of the protection or privilege so afforded, unless the Legislature intended to make an exception in his case."
18. ' With this frame of reference, argument advanced by learned counsel for petitioners that the term "otherwise" as used in section 2(ii) is to be read as ejusdem generis does not appeal to reason because the term ejusdem generis is not a rule of law but is a rule of construction, which enables a Court to ascertain the intention of the Legislature. It does not warrant the Court to subverting or defeating the legislative will by confining the operation of statute within narrow limit than intended by the law-maker. Thus, the term "establishment" in context of the word "otherwise" as used in section 2(ii) of the Ordinance of 1965 is not restricted to the three fields as referred therein.
19. "Establishment" includes employees at all levels either they may be household servant, staff of public institution or a private business. Thus, in the common parlance any organized set up with certain number of its employees will be covered within the meaning of "establishment". The word "establishment" as defined in Industrial Relations Ordinance, 1969 covers a large area of small or big business set ups including an office, firm, industrial unit, shop or undertaking or premises in which workmen are employed for the purpose of carrying on any business, trade, manufacture, calling, services, employment or occupation. Reference can be made to 1989 PLC 969 and PLD 1994 SC 738.
20. ' With this large area of term "establishment" used in Industrial Relations Ordinance, 1969 covering almost all small business institutions of private and public sectors observations made by the Honourable Supreme Court of Pakistan in the case of Don Basco High School v. The Assistant Director, E.O.B.I. And others PLD 1989 SC 128 is material, wherein it is observed that:--- "Doctrine of ejudsem generis will apply where there is nothing to show in the provision of Act that a wider sense was intended or the intention to give to the general term a broader meaning than the doctrine was not manifested."
21. ' Term "establishment" as used in Industrial Relations Ordinance, 1969 if read with section 2(ii) of Social Security Ordinance, we found both of them are in parallel to each other and thus term "otherwise" as used cannot be said to be a ejudsm generis but will extend to the educational institutions also for the purpose of applicability of Social Security Ordinance.
22. ' So in Lila Vati Bai v. State of Bombay AIR 1957 SC 521 referred by learned counsel for respondent, the argument advanced by petitioner's counsel in that case that the term "otherwise" used in section 6 of Bombay Land Acquisition Act, 1948 must be construed as ejusdem generis with the words immediately proceedings and also in view of affidavit filed on behalf of the Government there was in law no vacancy. It is observed that:-- "the Legislature has been cautious and through going enough to bar all avenues of escape by using the words "or otherwise"; Those words are not words of limitation but of extension so as to cover all possible ways in which a vacancy may occur."
23. ' Thus we are not in agreement to the argument advanced by learned counsel for the petitioners that the term "establishment" as used in the Ordinance of 1965 be read in limited scope to the extent of three forums as specifically defined therein and no vacancy has been left by the Legislature to add educational institutions in terms of "establishment" with the cover of word "otherwise" used in the section.
24. ' The authorities referred by learned counsel for the petitioner as K.G. Old Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097; The Managing Committee, Attock Industrial School v. Presiding Officer, Punjab Labour Court No,2, Lahore and another 1985 PLC 936; The University of Delhi and another v.
25. Ram Nath and others AIR 1963 SC 1873; Management of Safdar Jung Hospital, New Delhi v. Kuldip Singh Sethi AIR 1970 SC 1407 are absolutely on different footings and in none of the cases applicability of Social Security Ordinance on the educational institutions has been discussed.
26. Almost all the cases referred are with reference to the jurisdiction availed by the parties for their respective claims.
27. ' To meet such a situation we will again go to the doctrine of ejusdem generis, which cannot be applied in a case where the very construction of statute as a whole indicates that the Legislature intended the general words to go beyond the class specifically designed as it applies only when---
(1) the statute enumerates the specific words;
(2) the subject of enumeration constitute a class or category;
(3) the class and category is not exhausted by the enumeration;
(4) the general term following the enumeration; and
(5) there is no indication of different legislative intent.
28. ' In parallel to this term and word "otherwise" as used and discussed clearly indicates that the purpose of Legislature by using this word is not to restrict the term "establishment" only to the area specified in the definition but it intends to extend the same wherever is found it reasonable. The word "otherwise" in subsection (ii) of section 2 of, the Ordinance of 1965 is used distinctively in a sense to include any other organization that attract the operation of this Ordinance.
29. ' The term "organization" has further been elaborated in the case of St. Bonaventure's Boys High Schools Tilak Incline and Qasimabad, Hyderabad through Authorized Representative and another v. Province of Sindh and 2 others 2004 PLC 381 that:-- ".... The term "organization" as employed in the Qrdinance has therefore, a very wide and literal importance to deliver benefit to its employees irrespective of the nature of organization. The intention thus, seems to apply the Ordinance even to such organizations which are engaged on non-profit basis and are rendering welfare services, it therefore, follows that the mere fact that the petitioner's schools are being run on non-profit basis, do not justify their exclusion from the purview of the Ordinance."
30. ' Learned counsel for the respondent has also relied his arguments on Sacred Heart High School v.
31. Director, Social Security and others 1997 PLC 729, wherein almost same issue of applicability of Social Security Ordinance on the educational institutions was dealt with and it was observed that "the notification issued by the respondent do not suffer from any legal infirmity" and with this observation petition filed by the petitioner was dismissed.
32. ' Although the petitioners in Constitutional Petition No,D-165 of 2006 stated that they are running the institution on chartiable basis and to support his contention photocopy of declaration of trust has been filed. Indeed it may be so, but the fact remains that the employees of such IF institution and their dependents should also be beneficent and their service be secured in case of sickness, maternity employment injury or death and for mattes ancillary thereto. So if an institution claims itself, running on charitable basis, is also supposed to give security to all its employees as they also come within the ambit for the purpose of which the institution was established.
33. ' The upshot of the above discussion is that we are of the view that the term "establishment" covers educational institutions within the meaning of Ordinance of 1965. Consequently, all the three constitutional petitions stands dismissed.