1. GULZAR AHMED, J. - By this petition, the petitioner has sought declaration that the Workers'
2. Children (Education) Ordinance, 1972 (hereafter to be referred as the Ordinance) is not applicable to the petitioner and the demand of cess made under the said Ordinance from. The petitioner is without jurisdiction, unlawful and the same may be quashed and set aside. No counter-affidavit or comments have been filed by the respondent. The petition has been filed by M/s: Baqai Foundation
(i) Baqai Hospital, Nazimabad | (ii) Baqai IVIedical. University, Super Highway, Karachi.
3. Learned counsel for the petitioner contended that the petitioner is a non-profit organization and has sponsored a university by the name of Baqai Medical University, which was established by the Baqai University Act, 1996, which Act was published in Sindh Government Gazette dated k 26.5.1996.
4. He contended that being a non-profit organization and statutory body,; it does not come within the purview of the term establishment as defined in clause (b) of Section 2 of the Ordinance. He further contended that similar institution like that of the petitioner namely University of Karachi, NED University of Engineering and Technology, Dow Medical., College and Sindh Medical College are not required to make contribution under the Ordinance and recovery being effected from the petitioner is discriminatory, and contrary to Article 25 of the Constitution. In support of his submissions he has relied upon the cases of Grand Folks English School v. Excise & Taxation Officer (1991 PLC 757) and Messrs Standard Printing Press v. Sindh Employees' Social Security Institution (1988 SCMR 91).
5. On the .Other hand, learned counsel for the respondents Nos. 2 & 3 has contended that the word establishment, as defined in the Ordinance, has already been considered up to the level of Hon'ble Supreme Court in respect of institutions similar like that of the petitioner and they have been found to be covered by the Ordinance and that there is nothing on record to show that there is any element of discrimination infringing the provision of Article 25 of the Constitution. In support of his submissions he has relied upon the cases of Printing Corporation of Pakistan: v. Province of Sindh (PLD 1990 SC 452), Liaquat National Hospital v. Government of Sindh (PLD 1977 Karachi 843), Holy Family Hospital & another v. Government of Sindh & another (1985 SCMR 593) and also the case of M/s- Standard Printing Press v. Sindh Employees Social Security Institution (1988 SCMR 91).
6. It seems from the fact alleged in the petition that the petitioner is a registered foundation by the name of Baqai Foundation under the registered Waqfnama dated 7.11.1983, which was created by Dr. F.U. Baqai with the objects, inter alia, to construct, establish, run, maintain, aid and subsidize hospitals and to construct, establish, maintain, run, aid, subsidize university, colleges, schools etc. The income of the foundation is provided, to be applied towards the expanses for the management and execution of the trust and balance amount is to be applied towards objects defined; In the Waqfnama. The Baqai Medical University was established by Baqai Medical University Act, 1996, wherein it provides that its Chancellor shall be the Chairman of the Foundation.
7. Baqai Hospital is stated to. Be affiliated to the said university.
8. A Division Bench of this Court came to consider the definition of term "establishment" as given in the Ordinance in the case of Grand Folks English School (supra). Learned Division Bench relying upon the definition of the term 'industry' as given in Section 2(xiv) in the Industrial Relations Ordinance, 1969 and on the cases of K.G. Old v. Presiding Officer of Punjab Labour Court (PLD 1976 Lahore 1097) and Employees Union Jamya Karachi v. Registrar Trade Union (PLD 1981 Karachi 397 correct citation is 1981 PLC 403) came to the conclusion that as the definition *of term 'industry' in the Industrial Relations Ordinance, 1969 being similar to the definition of .Term "establishment" of the Ordinance and in the two referred cases a single Judge of Lahore High Court has held that educational institution is not an industry as defined in Industrial Relations Ordinance, 1969, which decision was approved by a Division Bench of this Court in Employees Union Jamya Karachi's case, the term "establishment" as defined in the Ordinance will not include the educational institutions and thus allowed the petition and declared the notice, issued by the respondent for filing of return under the Ordinance as without jurisdiction and of no legal effect. It may be noted that this judgment was given by the learned Division Bench of this Court, when no one appeared before it from the side of respondent and the learned Division Bench was not informed that there already existed a reported Division Bench judgment of this Court, who has considered the definition of the term "establishment" as given in the Workers' Children (Education) Ordinance, 1972 as to its applicability to the hospitals and the activity of training being imparted by One of | them. Such judgment in respect of Liaquat National Hospital and Holy Family Hospital is reported as Liaquat National Hospital v. Government of Sindh (PLD 1977 Karachi 843), which judgment was challenged before the Hon'ble Supreme Court of Pakistan, who decided the same through its judgment reported as Holy Family Hospital & another v. Government of Sindh & another (1985 SCMR 593).
9. In the case of Liaquat National Hospital, the Division Bench of this Court extensively examined the definition of the term "establishment" as given in the Ordinance on the I threshold of definitions of the terms 'establishment' and 'industry' appearing in various other labour laws and judgment of the Supreme Court of Pakistan and judgments from English and Indian jurisdictions including the one where it was held that educational institutions will not come within the ambit of term 'industry' as defined in the Industrial Disputes Act, 1947 (the successor of this Act was Industrial Relations Ordinance, 1969) and came to the conclusion that the word 'service' appearing in the term "establishment" as defined in the Ordinance will have application to' the hospitals. Such judgment was maintained by. The Hon'ble Supreme Court in the case of Holy Family Hospital. There already being, in the field judgment on subject of applicability of the Ordinance to the. Hospitals and its ancillary training work of the Hon'ble Supreme Court of Pakistan in the case of Holy Family Hospital, and the same being binding upon us in terms of Article 189-of the Constitution of Islamic Republic of Pakistan; 1973, we respectfully, propose to follow the same and hold that petitioner's institutions are covered by term "establishment" as given in clause (b) of Section 2 of ) the Ordinance as undoubtedly petitioner is rendering 'service' in its hospital as well as in its university, which also have premises and workers employed.
10. As regards the arguments that the University is statutory body and therefore, it will not come within the purview of the definition of the term'"establishment" of the Ordinance, no judgment was cited in support of such proposition. The definition of term 'establishment' in the Ordinance is as follows:- [(b) 'Establishment" means any office, firm industrial unit, undertaking, shop or premises in which workers are employed for the purpose of carrying on any business, trade, manufacture, calling, service, employment or occupation.] The reading of the above definition will show that it does not proceed on the basis of the juristic character of the body which is sought to be brought within its mischief but proceeds rather on using of terminology office, firm, industrial unit, undertaking, shop or premises, in which workers are employed for the purpose of carrying on any business, trade' manufacture, calling, service, employment or occupation. This being the state of law and it is already found that institutions which provide service and has premises and workers employed in them will be covered by this definition, therefore, we are of the considered view that the establishment merely having character of statutory body will not be excluded from the term "establishment" as defined in the Ordinance. In the case of Printing Corporation of Pakistan (supra) Hon'ble Supreme Court of Pakistan has maintained the judgment of this. Court by which the petition filed by Printing Corporation of Pakistan was dismissed and its piece that the Ordinance does not apply to it employees being the person in service of Pakistan was rejected.
11. Besides the Ordinance is a beneficial legislation providing for education free of cost up to any level to two children of every worker in an establishment has to be liberally construed and so far as possible its benefit be extended and not narrowed down where the children of the workers employed in an establishment may be deprived of the same. For this reason also we do not agree with the learned counsel for the petitioner that petitioner is not. Covered by the definition of term establishment given in the Ordinance.
12. As regards the question of discrimination, the same has been also taken care of by^ the judgment of Supreme Court of Pakistan in the case of Standard Printing Press (supra) where their lordships have held that in determining the question as to whether the .Application of the law is discriminately ' enforced, it, "necessarily involves the examination Of certain controverted facts and determination thereof,, it cannot .Take place in the absence of the government and the parties in whose favour discrimination was alleged for they could possibly demonstrate that their cases were not similar but distinguishable". Though the Province of Sindh is a party in this petition but the University of Karachi, NED University of Engineering and Technology, Dow Medical College and Sindh Medical College have riot been joined as respondents in this petition on account of which we can not make any effective determination on the point of discrimination.
13. After hearing the counsel for the parties, we have passed a Short order dated 23.4.2009 by which the petition was dismissed in limine along with listed application. Above are the reasons for the said short order. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.