' SABIHUDDIN AHMED, J.--- The appellant is a registered trade union of workers registered under the Industrial Relations Ordinance, 1969 (hereinafter mentioned as the "1969 Ordinance") and deemed to have been registered under the Industrial Relations Ordinance, 2002 (hereinafter mentioned as the "present Ordinance") under section 80(2)(a), of the latter of the workers employed in Army Welfare Sugar Mills, Badin. Admittedly, the mills registered under the Factories Act, 1934 is owned by a Trust known as the Army Welfare Trust which has been registered under the Societies Registration Act formed primarily for the welfare of retired personnel of the army forces and their dependents i,e, parents, spouses, unmarried daughters and sons under the age of eighteen (18) years.
Admittedly, the mills are engaged in the manufacture of sugar, which is sold in the open market for profit. The profits earned, however, are appropriated by the trust to be utilized for its purpose. The employees of the mills are ordinary civilians.
2. On 30th May, 2003, the General Manager, addressed a letter to the Registrar of Trade union requesting him to file a complaint before the Labour Court contending that the mills is a project of the Armed forces and the appellant union was registered in contravention of the provisions of the Repealed Ordinance. Accordingly, a complaint was lodged before the Sindh Labour Court, Hyderabad contending that the initial registration of the appellant was contrary to the provisions of the 1969 Ordinance as well as the present Ordinance. The complaint however, came to be dismissed by an order of the respondent No,3, dated 7-8-2004. The trust, however, invoked the jurisdiction of the Sindh High Court under Article 199 of the Constitution assailing the order of the Labour Court. A learned single Judge of the said Court however, allowed the petition setting aside the order of the Labour Court and directing the Registrar to cancel the registration of the appellant vide judgment, dated 21-9-2005. The aforesaid judgment has been assailed before us by the appellant and leave was granted by this Court to examine, inter alia, whether the mill continued to remain exempt from the operation of the present Ordinance in view of section 1(4)(b) which is somewhat different from the comparative provisions of the Repealed Ordinance.
3. Syed Shahenshah Hussain, learned counsel for the appellant basically argued that the provisions relating to exclusion of installation of services connected with the armed forces in the present Ordinance and the Repealed Ordinance are substantially different and, therefore, the Honourable High Court fell into error in holding that the respondent mills continued to remain outside the purview of the Industrial Relations Ordinance. In this context learned counsel drew our attention to the respective provisions relating to the extent of the application of two Ordinances. He pointed out that section 1(3) of the Repealed Ordinance read as follows:--- ' It shall not apply to any person employed---
(a) in the police or any of the Defence Services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government."
4. On the other hand section 1(4) of 2002 Ordinance read as follows: "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; and
(b) in any installation or services exclusively connected with the Armed Forces of Pakistan including Ministry of Defence lines of Railways. "
5. Learned counsel argued that the 1969 Ordinance postulated exclusion of persons employed not merely in service or in installation connected with the armed forces but even those incidental thereto. On the other hand the scope of excluding provisions under the 2002 Ordinance has been substantially narrowed down by requiring that only persons employed in installation or service which are exclusively connected with the Armed Forces would be excluded from the operation of the Ordinance. As such the case-law relied upon in the impugned judgment largely based upon the interpretation of the provisions of 1969 Ordinance had become largely irrelevant. Learned counsel went on to contend that on the basis of admitted facts to the effect that neither the members of the appellant union were alleged to be employed in the Armed Forces nor the services provided by the mills exclusively catered to the requirements of the Armed Force. There appeared to be no basis for claiming that the persons were employed exclusively in connection with such forces to attract the provisions of section 1(4)(b) of the present Ordinance.
6. Learned counsel further argued that mere ownership of the assets of the mills and the right to appropriate profits by members of the Armed forces was no criteria for holding that the employees of the mills fell within the purview of section 1(4)(b) of the present Ordinance. Alternatively he contended that even if the respondent No,1 Was found to be covered by the aforesaid provision of section 1(4)(b) the appellants right to form a trade union continued to survive in terms of the Article 17(1) of the Constitution. In support of his contention learned counsel relied upon the pronouncement of this Court in the case of Civil Aviation Authority, Islamabad and others v. Union of Civil Aviation Employees and another reported in PLD 1997 SC 781. No doubt in the aforesaid celebrated pronouncement, their Lordships did hold that the right to form a trade union, subject to reasonable restrictions imposed by law in the interest of sovereignty and integrity of Pakistan, public order or morality was always available irrespective of any provisions of sub-constitutional legislation. Nevertheless, they further went on to held that a union formed in violation of the requirements of statutory law could only undertake collective bargaining but had no right to go on strike as such right was not guaranteed by the Constitution but was only conferred by the statute.
In the facts of the present case, however, the above contention is hardly of any help to the appellant. Indeed, section 12 of the Ordinance enables the Registrar to seek cancellation of registration of a trade union which has been registered in contravention of statutory provisions and in case it is shown that the appellant union has been registered in violation thereof the Labour Court was bound to order its cancellation. Such cancellation, however, could in no way affect the rights of the appellant granted by the Constitution and such rights always remained available even if the order of cancellation is not set aside. Obviously, the appellant was persuaded to question the impugned order only to seek enforcement of its rights conferred by the statute itself.
7. Mr. Shahid Anwar Bajwa, learned counsel for the respondents, on the other hand extensively referred to the provisions of Articles of Memorandum of the Trust emphasizing that the respondent mills was not an independent corporate entity but merely a project of the trust. He urged that beneficiaries of the trust were only serving or retired personnel of the Pakistan Army and their family members and, therefore, the exclusive connection of the mills with the armed forces stood fully established. Moreover, he pointed out that the management of the trust was effectively in the hands of serving personnel of the Pakistan Army and the benefits of its income were to be disbursed through the Welfare Rehabilitation Directorate of the Army. He, therefore, urged that the mills was an "installation exclusively connected with the Armed Forces".
8. In support of his contention, learned counsel relied upon several reported precedents from different jurisdiction in Pakistan including the pronouncements of this Court in the cases of (i)
Rehmat Gill v. Quetta Cantonment Board PLD 1983 SC 133, (ii) Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others 1983 SCM R 1101, (iii)
The Controller Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sindh and others PLD 1991 SC 353, (iv) Haji Malik Aman and others v. Federation of Pakistan 1993 SCM R 1837 and (v) Nisar Ahmad and others v. Federation of Pakistan and others 1999 SCM R 1338. To enable us to effectively appreciate the factual background, under which the above pronouncements were delivered, learned counsel in his well-researched presentation also provided us with copies of the reported cases from which proceedings before this Court had emanated. We are indeed grateful for his valuable assistance. Though the precedents cited relate to the interpretation of the provisions of the Industrial Relations Ordinance, 1969 they do shed light on the principles of interpretation involved in the instant controversy, therefore, we have carefully considered them.
9. In the case of Rehmat Gill v. Quetta Cantonment Board PLD 1983 SC 133, the appellant was an employee of a Cantonment Board and it was claimed by the respondent that he was excluded from the purview of Repealed Ordinance by virtue of section 1(3)(a) thereof relying upon the definition of Cantonment in the Cantonments Act. Shafi-urRehman, J. Held that only such places could be declared Cantonments where "any part of the regular force or Air Force of Pakistan is quartered or which being in the vicinity of any such place or places is or are required for service of such forces". He went on to held that the very raison d'etre for cantonment was the quartering of regular forces and therefore, all duties of cantonments though some of them may be of purely municipal character were directed towards quartering of troops. His Lordship noted that Cantonment Boards were corporate bodies under the Act but went on to held that cantonment themselves being the quarters of Arms Forces, their management and administration was necessarily a service directly concerned with the Armed Forces and only incidentally that civil population residing therein.
10. In the case of Canteen Stores Department Employees Welfare Union, Karachi v. Canteen Stores Department and others 1983 SCM R 1101, it was pointed out that the C.S.D. Was started with private funds and did not receive any financial contribution from the Government. The same learned Judge observed that its purpose being "to form the basis of an efficient canteen organization in peace and war for troops located anywhere in the country and operational areas during the war" clearly made it out to be an organization connected with the Armed Forces.
11. In the case of The Controller Stationery and Forms, Government of Pakistan v. The Registrar, Trade Unions, Sindh and others PLD 1991 SC 353, their Lordships acknowledged that to bring an employee within one of the categories excluded by section 1(3) of the 1969 Ordinance it was not necessary for the finances or the funds should be under the control of a Government Department and not under the management of corporate body but what important was important whether the person is employed inter alia in any of the Armed Forces or in service or installation connected with or incidental to the Armed Forces of Pakistan or in the administration of the State. It was further held that keeping in view the functions of the appellant which not only supplies printing materials to various organizations but also caters for the requirements and other State organs/functionaries which are used, inter alia, for .Facilitating communications between the Armed Forces, it could be concluded that the employees were covered by clauses (a) and (b) of section 1(3) of the 1969 Ordinance.
12. In the case of Haji Malik Aman and others v. Federation of Pakistan 1993 SCM R 1837, a five Members Bench of this Court held that the employees of National Radio and Telecommunication Corporations (though an independent entity) were excluded from the provisions of section 1(3) of the 1969 Ordinance on the ground that the corporation was a sensitive establishment as it provided "all good to the Armed Forces and without proper supply, the activities of the Armed Forces in time of war and peace could be hampered". At the same time it was held, that the fundamental rights of the employees guaranteed by Article 17(1) of the Constitution were not impaired by the application of the above section 1(3) because the right guaranteed always subject to reasonable restrictions imposed inter alia in the interest of public order.
13. A perusal of the impugned judgment shows that the exclusive connection of the respondent's mills with the Armed Forces was found by the Honourable High Court upon the sole consideration that income of the trust owning the mills was exclusively applied for the benefit of serving and retired army personnel and their dependents. In the above context, however, we are unable to appreciate as to how such exclusive connection with the forces could be held to be established when admittedly the beneficiaries are not merely serving personnel but even their family members who are independent identities for all legal purposes and retired persons who have acquired the status of civilians are no longer subject to the control and discipline of the Armed Forces. Perhaps by that token any industrial enterprise exclusively owned by retired army officers or the spouse or adult daughters of a serving officer could also claim exemption from the operation of the Industrial Relations Ordinance in respect of his industrial establishment. Indeed it is difficult to attribute any such intention to the Legislature and Mr. Bajwa himself conceded so.
14. Mr. Bajwa himself candidly conceded that any industrial establishment owned by any person falling within the category of the beneficiaries of the trust might not qualify for exemption from the operation of the Ordinance nevertheless he argued that the dominant purpose of the trust was required to be considered and if any incidental benefit was derived by any other person it was liable to be ignored. To this extent we are inclined to agree with him, however, he argued that the trust though registered under the Society Registration Act, 1860 was managed exclusively by serving Armed Forces personnel and its income was required to expend for wellbeing of the beneficiaries through the Welfare and Rehabilitation Directorate of the Pakistan Army and, therefore, an exclusive nexus with Armed Forces stood establish. In the above context however, we are entirely unable to agree with him and find great force in Mr. Shahenshah Hussain's contention that ownership or management are entirely irrelevant considerations for establishing the nexus with Armed Forces. The precedents cited by learned counsel also appear to lead to the contrary conclusion. In the case of Canteen Stores Department Employees Welfare Union, Karachi (supra) it was acknowledged that the Department was neither owned nor supported by the Government/Armed Forces, in the case of Rehmat Gill (supra) and Haji Malik Aman and others (supra) the Court admittedly found the Cantonment Board and the corporation to' be owned by autonomous corporate entities and yet the benefit of exemption from the Ordinance was granted upon the sole consideration of the institution rendering services connected with or incidental to the Armed Forces. In the case of Controller Stationery and Forms, Government of Pakistan (supra) their Lordships expressly held that it was not necessary for finances or funds to be under the control of a Government or the management of a corporate body but what was important to consider whether the persons were employed in the Armed Forces or services or installations connected with or incidental to such forces. All these cases lend support to Mr. Shahenshah Hussain's contention that ownership and management were irrelevant considerations appear to have force.
15. Mr. Bajwa however attempted to urge that any kind of exclusive connection with the Armed Forces was sufficient to exclude the operation of the Ordinance. He further contended that even if no services were rendered exclusively to the Armed Forces the mills could be aptly described as "an installation exclusively connected" with such forces. We regret our inability to subscribe to either of the two contentions. In this context it needs to be kept in view that the Ordinance is in the nature of welfare legislation aimed at resolving disputes between workers and employers and conferring valuable rights upon the former to undertake collective bargaining relating to terms of their employment. It is well-settled that provisions exempting the operation of welfare legislation need to be very strictly construed. Secondly, Courts are required to appreciate the intention of the Legislature, which is evident from the provisions significantly narrowing down the scope of the exempting provision in the Ordinance from the earlier statute i,e, the 1969 Ordinance. The argument that the mills could be described as an installation connected with Armed Forces is ex facie untenable. By that token any industrial activity carried on in a premises owned by member of the Armed Forces or managed by retired Officer could claim such exemption which would indeed be absurd.
16. In view of the above, we are of the considered opinion that for claiming an exemption under section 1(4) a functional connection with the Armed Forces as to activities performed in the establishment where a person is employed must be established. At the same time, the functions of the Armed Forces are clearly spelled out in Article 245 of the Constitution and, therefore, only an installation which is directly connected with such function i,e, defence of Pakistan against external aggression or to act in aid of civil power if called upon to do so must be shown. We are, therefore, clearly of the opinion that the mills in question is neither rendering services exclusively to the Armed Forces nor can it be treated as an installation of such forces. We have, therefore, allowed this appeal, setting aside the impugned order of the Honourable High Court and restoring the order of the Sixth Sindh Labour Court, Hyderabad. Above are our reasons for the same. We must acknowledge the able assistance provided by the learned counsel for the parties for which we are grateful.