' ANWAR ZAHEER JAMALI, J.--- The above titled two civil appeals arise out of common judgment dated, 25-4-2008, passed by a learned Division Bench of Sindh High Court at Karachi, whereby, petitions filed by the present appellants, along with another identical Constitutional Petition No,D- 165 of 2006, by some other petitioner, involving similar controversy, were dismissed. We, therefore, propose to dispose of both these appeals by this common judgment.
2. Briefly stated, relevant facts forming background of this litigation are that the two appellants i.e, Messfs City School (Pvt.) Ltd, and the Citizen Foundation both running educational institution, with the only distinction in their cases that the latter one (Citizens Foundation) claims to be doing so on charitable basis, have challenged the two notifications of identical nature dated 5-12-1996 and 6- 3-2003 respectively, issued by the Govt. Of Sindh in exercise of its powers conferred by subsection
(iii) to section 1 of Sindh Employees Social Security Ordinance, 1965 (in short "Ordinance of 1965"), thereby, amongst others, including the names of their respective educational institutions in the list of Establishments, whose employees will be now covered under the Ordinance of 1965 and entitled to the benefits of their schemes to the extent and in the manner as provided under sections 35 to 45 of the Ordinance of 1965. The names of the present appellants respectively appear at Serial Nos.20 to 22 of the notification, dated 5-2-1996 and Serial No,324 of the notification, dated 6-3- 2003.
3. In a nutshell, in both the petitions before the High Court,grievance of the petitioners was that their educational institutions, which have been subjected to the scheme of Ordinance of 1965 through impugned notifications issued by respondents Nos.
1. And 2, were not the institutions covered by the definition of word "establishment" as defined under section 2(11) of the Ordinance of 1965.
4. Mr. Arshad Tayabaly, learned counsel fOr the appellant addressing the Court in Civil Appeal No,1313 of 2008, vehemently contended that under subsection (11) to section 2 (ibid), defining word "establishment" for the purposes of Ordinance of 1965, use of words `industrial', 'commercial', 'agricultural', each having different connotations, followed by the words 'or otherwise', applying the well recognized principle of "ejusdem generis" will not cover the cases of the present appellants, as neither they are industrial, commercial or agricultural establishment covered under the scope of word "establishment", nor the use of words "or otherwise" will extend its scope to cover the case of appellants, being educational institutions. He further argued that an educational institution which is being run on charitable basis is rendering great service to the nation to educate poor people, therefore, it cannot be subjected to the scheme of the Ordinance of 1965 to burden it with extra financial liability in the form of payment of contribution to respondent No,2 in their capacity as employer. In support of his submissions, learned counsel placed reliance upon the case of Don Bosco High School Empress Road Lahore v. Director Social Security 2005 PLC 110.
5. However when confronted with an unreported judgment of this Court dated, 29-9-2005, learned counsel did not dispute that any reference to the judgment cited by him, which contains some observations in support of petitioners' case, will be an exercise in futility as the said judgment dated, 2-12-1999, whereby several identical petitions containing the same controversy in the context of definition of word 'establishment' under section 2(11) of the Ordinance of 1965, was set aside by this Court in all such identical petitions, vide common judgment dated, 29-9-2005 with the following observations:--- "Be that as it may, after hearing learned counsel for the partiesat quite some length and without entering into facts of the case, we are of the considered opinion that the submissions advanced at the Bar have sufficient force and the resolution thereof, involves indepth enquiry into various factual aspects, which cannot be undertaken by this Court in the exercise of Constitutional jurisdiction. It would, therefore, be just, fair, proper and expedient in the interest of justice to direct the respondents, , as voluntarily offered by them, to place their grievance before the relevant authorities in terms of the provisions referred to above against the impugned action. On their part, the authorities shall determine their liability afresh on the basis of the material that may be produced by the respondents and pass a fresh order strictly. According to law. With these observations, impugned judgments of the High Court are set aside and appeals disposed of by remanding the petitions to the Social Security Institution Punjab, Lahore for decision afresh in terms as indicated above. No order as to costs."
6. Mr. Khalid Javed Khan, learned counsel representing appellant in the other connected Appeal No,1314 of 2008, endorsing the submissions of learned counsel for the appellant in Civil Appeal No,1313 of 2008, further added that use of words "or otherwise" in subsection (11) to section 2 of the Ordinance of 1965 will not extend its scope in the manner that educational institutions could also be brought under the umbrella of word "establishment" as defined under the Ordinance of 1965.
Learned counsel', however, did not dispute that the appellant in this case are not an educational institution which are being run on charitable basis, but essentially a commercial venture. Learned counsel in support of his submissions, also cited the cases reported as (a) K.G. Old v. Presiding Officer, Punjab Labour Court 1976 PLC 675, (b) Employees Union v. Registrar of Trade Unions 1981 PLC 403, and (c) Board of Governors Aitchison College v. Punjab Labour Appellate Tribunal 2001 SCMR 1928:---
(a) In the above cited K.G. Old's case (supra), learned single Judge in the chambers of Lahore High Court, dilating upon the principles of interpretation of statute, examined the import of words 'business', 'trade', 'manufacture', 'calling', 'service', `occupation' as defined under Industrial Relations Ordinance, 1969, and held that these words were to be used with widest amplitude to include in their sweep every conceivable human activity other than casual, recreational or a past time. After detailed discussion of case law and the definition of these words in different renowned English dictionaries, the learned. Judge concluded as under:--
(52) The upshot of the entire discussion is that the use of the expressions "Business, Trade, Manufacture, Calling, Service, Employment or Occupation" in the definition of Industrial Relation Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organized and is systematic depending substantially, if set entirely, on the cooperation between labour and capital, and having as its object production, distribution and consumption of wealth, off, the production or provision of material services. The enterprise as a whole has to be looked at to find out its raison d'etre, and any part of it which is incidental; ancillary or an adjunct cannot determine the character of the whole.
(53) Applying these tests to the individual cases we find that Christian Technical Training Centre is an educational and training establishment. If it is maintaining an industrial unit (a workshop) rendering services on payment, advertising its product, it is as an incidence of vocational education and of training programme designed to ensure job opportunities to the trainees.
Therefore, what is incidental to the main purpose cannot detract in any manner, from its being an educational institution.
(b) In the next case of Employees Union (supra), while dealing with a case under the Ordinance of 1965 and considering the principle of interpretation of statute viz harmonious construction of different provisions of a statute, the High Court laid down as under:-- "In the light of the foregoing discussion regarding language used, the separability and interaction of the two parts of section 81 and their placement (as done in the earlier reproduction) its provisions become tangible besides being operative in each and every part thereof. Thus, applied the exercise made in the Karachi case of Mst. Lai Jan regarding inconsistencies in the sense of incompatibility, would have to be made in every case of the present type. After doing the same it would be resolved whether or not the benefit and/or compensation available under any of the laws mentioned in the first part of section 81, would not be obtainable in addition to the benefits under the Social Security Ordinance. In this case proper comparison was made by the special forums constituted in this behalf, on the lines as was done in the Karachi case of Mst. Lai Jan. The compensation available under the Workmen's Compensation Act to the appellant was not found inconsistent/incompatible with the relevant benefits under the Social Security Ordinance.
Accordingly both the benefits under both the laws could be obtained by the appellant. That being so this appeal merits acceptance."
(c) In the last case of Board of Governors Aitchison College (supra), while dealing with a case under the Industrial Relations Ordinance, 1969, it was held after taking into consideration the definition of word "industry" under the said Ordinance XXIII of 1969, that without any doubt, it can be deemed that institutions responsible for imparting education like the appellant's organization do not fall within the definition of industry. Further reference to the case of University of Delhi and others. v. Ram Nath and others AIR 1963 SC 1873 was made, wherein the Court had observed as under:-- "(8) It is true that like all educational institutions the University of Dehli employs subordinate staff and this subordinate staff does the work assigned to it; but in the main scheme of imparting education, this subordinate staff plays such a minor, subordinate and insignificant part that it would be unreasonable to allow this work to lend its industrial colour to the principal activity of the University which is imparting education. The work of promoting education is carried on by the University and its teachers and if the teachers are excluded from the purview of the Act, it would be unreasonable to regard the work of imparting education as industry only because its minor subsidiary anti incidental work may seem to partake of the character of service which may fall under section 2(j)."
7. In addition to it, both the learned counsel also seriously criticized the policy of pick and choose, which according to them, has been followed by the respondent No,2 institution since its inception, in notifying the names of various establishments, being discriminatory and violative of fundamental rights guaranteed under Article 25 of the Constitution, thereby opening a gateway for corruption in the institution on the basis of personal liking and disliking.
8. Conversely, Mr. S.A. Sarwana, learned counsel for the respondent in both the appeals, at the outset, read the preamble of the Ordinance of 1965, and Articles 2-A and 38(c)(d) of our Constitution to substantiate his submission that the definition of word "establishment" under section 2(11) of the Ordinance of 1965, wherever possible, was to be interpreted liberally and widely, as the scheme envisaged under the Ordinance of 1965 is wholly beneficial in nature, therefore, the employees of educational institutions like the appellants may not be deprived of its benefit. He reiterated that the definition of word 'establishment' in the Ordinance of 1965 is to be read in a wider sense to extend its benefit to the employees of educational institutions, running on commercial or even charitable basis, which makes no difference for the purpose of applicability of the Ordinance of 1965. Learned counsel, with reference to the definition of 'establishment' provided in subsection (11) to section 2 of the Ordinance of 1965, further contended that use of words 'industrial', 'commercial' and 'agricultural' with the addition of words "or otherwise" at the end, has enlarged and widened the scope of its definition, so as to cover any type of educational institution, irrespective of the fact, whether being run on commercial basis or charitable basis. In order to demonstrate the beneficial character of the Ordinance of 1965, learned counsel further made reference to Chapter-V of the Ordinance of 1965, particularly sections 35 to 42. To add force to his contentions in this regard, he placed reliance on the reported cases (i) Sakina Bibi v. Crescent Textile Mills Ltd. PLD 1984 SC 241, (ii) Kohinoor Chemical's case PLD 1977 SC 197, (iii) Shaheen Airport Services v. Sindh Employees Social Security Institution 1994 SCMR 881, (iv) Holy Family Hospital v.
Government of Sindh 1985 SCMR 593 and, (v) MacDonald Layton Constain Ltd. v. Punjab Employees S.S.I. PLD 1991 SC 1055:---
(I) In the case of Sakina Bibi, applying the principle of harmonious construction of a statute, keeping in view the beneficial nature of the Ordinance of 1965, the scope of section 81 of the Ordinance of 1965 was examined and following observations were "In the light of the foregoing discussion regarding language used, the separability and interaction of the two parts of section 81 and their placement (as done in the earlier reproduction) its provisions become tangible besides being operative in each and every part thereof. Thus, applied the exercise made in the Karachi case of Mst. Lai Jan regarding inconsistencies in the sense of incompatibility, would have to be made in every case of the present type. After doing the same it would be resolved whether or not the benefit and/or compensation available under any of the laws mentioned in the first part of section 81, would not be obtainable in addition to the benefits under the Social Security Ordinance. In this case proper comparison was made by the special forums constituted in this behalf, on the lines as was done in the Karachi case of Mst. Lai Jan. The compensation available under the Workmen's Compensation Act to the appellant was not found inconsistent/incompatible with the relevant benefits under the Social Security Ordinance Accordingly both the benefits under both the laws could be obtained by the appellant. That being so this appeal merits acceptance."
(ii) In the case of Kohinoor Chemicals, the scope of words `employees' and 'establishment', as defined under sections 2(8) and (11) of the Ordinance 1965 was considered in-depth and, applying some well recognized principles of interpretation of statutes, following observations were made by the Court:--- "There is no doubt that we are dealing with a beneficial or remedial; legislation conceived as a means of ameliorating the lot of the working class, and as such it would be in keeping with the accepted principle of interpret -I as observed in Divisional Superintendent, P.W.R.,. Karachi v. Bashir Ahmed PLD 1973 SC 589 that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of the legislation, as wide an interpretation should be placed on the terms 'employee' and 'establishment as permissible within the language employed in the statute.
' Viewed in this light, the term 'establishment', as defined in subsection (11) of section 2 of the Ordinance, does not appear to me to be confined in its scope to merely the four walls of the physical premises where the notified establishment may be located; on the contrary, the definition speaks of an organization whether industrial, commercial, agricultural or otherwise. In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organs for the normal exercise of its appropriate functions. It follows, therefore, that an organization is not necessarily co-terminus with the physical premises where it may be located. It is possible that a part of its structure may be situated elsewhere, but it must , nevertheless be integral to its main functions and objects.
' That this is the proper construction of the term 'establishment' appears to find support from the definition of the term 'employee' as given in clause (8) of section 2 of the Ordinance, which includes in the definition not only a person working in the industry or establishment but also "in connection with the work of" any industry, business, undertaking or establishment. It is clear to me that a person who is working "in connection with the work of" an establishment may not necessarily be physically located in the notified premises, but may be elsewhere-of course, within the social security area as notified under clause (3) of section 1 of the Ordinance. The essential test in such a case would be whether the person concerned is indeed working in connection with the work of the notified establishment".
(iii) In the case of Shaheen Airport Services, again the scope of applicability of Ordinance of 1965, keeping in view its beneficial character, was ably discussed with reference to various principles of interpretation of statutes and following observations were made:-- "(6) There cannot be any cavil with the proposition that the Court cannot construe even a beneficial statute in such a way that it may violate its provisions nor the Court can place a beneficial interpretation on a provision contrary to its language merely on the ground that its literal construction will cause hardship or would not be beneficial to the class for whose benefit the statute in question was enacted. However, at the same time, the Court, while construing a beneficial enactment, can take into consideration the object for which it was enacted and the mischief which it intended to suppress, and if two possible constructions of a provision of such a statute are possible, one which favours the class of persons for whose benefit the statute has been enacted, would be preferred. In the case in hand, the Ordinance is a species of a statute which was to be enacted by the State with the object of promoting social and economic wellbeing of the people and, therefore, it is a beneficial enactment intended to provide social security to the workmen covered by the provisions of the same and, hence, it is to be construed liberally and if two constructions are possible, one which extends the benefit of the Ordinance to more workmen and the other which limits such benefit, the former is to be preferred."
(iv) In the case of Holy Family Hospital (supra), the scope of definition of word 'establishment' as defined under section 2(b) of the Workers' Children (Education) Ordinance of 1972, keeping in view its beneficial nature, was considered and in that context following observations were made:--- "The education cess in terms of section 3 of the Ordinance is not levied on profits of an establishment but is required to be paid by an employer of an establishment at the rate of Rs,100 per worker per annum provided the number of such employees during a year is twenty or more.
The education cess is charged for the benefit of the education of workers' children. Such object indeed is beneficial and has nothing to do whether the service rendered by the workers results in yielding any 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."
(v) In the last case of Macdonald Layton Constain Limited, with reference to the scope of word 'establishment' as defined under section 2(11) of the Ordinance of 1965, qua Article 2A of the Constitution, following useful observations were made by this Court:-- The learned counsel next contended that the petitioner/Company having itself made adequate arrangements for the Social Security cover, the High Court should not have interfered in the circumstances of this case. The criticism and the conduct of the petitioner in the order of the Commissioner, a part of which has already been quoted above, indicated otherwise. Unfortunately "we cannot help making an observation that the petitioner, in order to deprive a section of labour class employed by them, of due benefits under the Ordinance, took up untenable pleas and adopted such positions which it was difficult to establish . In such a pleas situation under the Islamic dispensation, even if the case for both the sides had been equally balanced in order to act advance the command regarding social justice, as contained in the Objectives Resolutions, the decision to be rendered by this Court would have gone in favour, of upholding the workers' right to the Social Security Cover. In the petition before us it is not even a case of equal strength of both the .Parties."
9. He also forcefully contended that upon use of word "or otherwise" in section 11(2)(ibid), the rule of "ejusdem generis" has lost its applicability and force. For this purpose he further placed reliance on the following cases:--
(a) Pir Sabir Shah v. Federation of Pakistan PLD 1994 SC 738,
(b) Don Basco High School v. Assistant Director EOBI PLD 1989 SC 128, (c) Lila Vati Bai v. Bombay State AIR 1957 SC 521, (d) National Association of Local Government Officers v. Bolton Corporation (1942) 2 All England Reporter 425 (HL).
(a) In the first case, dilating upon the provisions of Article 234 of the Constitution qua connotation of word "otherwise", after making reference to a plethora of case law, a larger Bench of this Court recorded its observations as under:-- ' The term "otherwise" has a very wide connotation, it will cover information acquired by the President from any other source than the Governor. Thus, a proclamation founded on information other than the Governor's report will be valid if it is in consonance with Article 234(1) of the Constitution."
(b) In the second case of Don Basco High School (supra), with reference to the principle of interpretation of statute, the applicability of rule of "ejusdem generis" was examined in the context of somewhat identical controversy with reference to the definition of term 'establishment' under section 2(e) of the Employees Old-Age Benefits Act (XIV of 1976) qua its applicability to the educational institutions (schools) and it was held that the mere fact that a school was not being run for profit or gain cannot be a reason for excluding it from the definition of word 'establishment' under the Employees Old-Age Benefits Act. Further in this case with reference to the inclusion of schools under the definition of 'establishment' qua doctrine of ejusdem generis following useful discussion was made by the Court:--- "According to 'Maxwell on the Interpretation of Statutes, 12th Edition, page 297, it is a well established rule in the construction statutes that "general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehend in the language of the Legislature; R. V. Cleworth (1864) 4 B & S.927, per Cockburn C.J. At 932. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended (emphasis supplied)". Reference is made by the author to R.V. Edwardson (1859) 28 L.J.M.C. 213).
' According to Corpus Juris Secundum, Volume 82, page 658 the rule or doctrine of 'ejusdem generis' will apply unless intention to the contrary is clearly shown. The relevant passage may be quoted here. It reads: "Where general words follow the enumeration of particular classes of persons or things, the general words, under the rule or maxim of construction known as 'ejusdem generis,' will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless an intention to the contrary is clearly shown." (underlining is ours)
' J.G. Sutherland, in his book 'Statutes and Statutory Construction', (Third Edition) in section 4910, at page 400 has stated that the doctrine applies when the following five conditions exist.
(1) the statute contains an enumeration by specific word;
(2) the members of the enumeration constitute a class;
(3) the class is not exhausted by the enumeration;
(4) a general term follows the enumeration; and
(5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.
' Therefore, it is necessary to examine the definition of the term "establishment" as given in section 2(e) of the Act. Firstly, it covers establishments to which the West Pakistan Shops and Establishments Ordinance 1969, applies. The Shops and Establishments Ordinance applies to a shop, commercial establishment, industrial establishment, private dispensary, maternity home, residential hotel, restaurant, eating house, cafe, cinema, theatre, circus or other place of public amusement or entertainment and such other establishment or class thereof as Government may by notification in the official Gazette declare to be establishment. But by virtue of the, provision of section 5 of the Ordinance, clubs, hostels, and messes not maintained for profit or gain; and establishments for the treatment or care of the sick, infirm, destitute or mentally unfit persons; are excluded from its purview. It seems from the definition of establishment as given in the Ordinance that it is intended to apply for the purpose of the Ordinance to establishments, where dealings are made or services rendered or public is entertained with the object or for purposes of profit or gain.
But under the Employees' Old-Age Benefits Act, which is a beneficial Act, the definition of establishment as given in the West Pakistan Shops and Establishments Ordinance has been broadened and it specifically includes establishments, places or organizations where services are rendered or which are not maintained for profit or gain such as club, hostel, mess and other organization which are otherwise excluded from the purview of West Pakistan Shops and Establishments Ordinance, 1969, as stated hereinbefore. Therefore, the intention seems to apply the Act to any institution even not maintained for earning profit or gain.Then in the definition of "establishment" as given in the Act before the words, clubs, hostels, organizations and messes word, "includes" is used which enlarges the scope and meaning of the word "establishment". It will include petitioner school as the word "include" is generally used in the interpretation clauses in order to enlarge the meaning of the words and phrases occurring in the body of the statute; Messrs Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205.
Reference may also be had to Dilworth v. Newzealand Commissioner of Stamps 1899 AC 99, wherein the meaning of the word "include" is stated as follows:-- "The word 'include' is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statutes."
' Further, the word "organization" in itself is broad enough to include school. According to Black's Law Dictionary word "organization" includes a corporation, Government or Governmental sub- division or agency, business trust, estate, trust, partnership or association, two or more persons having-a joint or common interest, of any other legal or commercial entity." This covers petitioner school.
' This word was considered by this Court also in the case of Kohinoor Chemical Co. Ltd. v. Sindh Employees' Social Security PLD 1977 SC 197 and it was observed as follows:- "In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organ's for the normal exercise of its appropriate functions."
' An 'organization' need not fall within the class of clubs, hostels or messes as hospitals for treatment or care of sick, infirm, destitute or mentally unfit persons is also brought within the purview of the Act by virtue of the definition of "establishment". Accordingly petitioner school falls within the mischief of the Act."
(c) In the third case of Lila Vati Bai (supra), from the Indian jurisdiction, the Supreme Court of India, dilating upon the word "otherwise" qua doctrine of ejusdem generis, dealing with an eviction case, held as under:-- ' The argument proceeds further to the effect that in the instant case admittedly there was no termination, eviction, assignment or transfer and that the words "or otherwise" must be construed as ejusdem generis with the words immediately preceding them; and that therefore on the facts as admitted even in the affidavit filed on behalf of the Government there was in law no vacancy. In the first place, as already indicated, we cannot go behind the declaration made by the Government that there was a vacancy. In the second place, the rule of ejusdem general sought to be pressed in aid of the petitioner can possibly have no application. The Legislature has been cautious and thoroughgoing 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. Generally speaking, a tenant's occupation of his premises ceases when his tenancy is terminated by acts of parties or by operation of law or by eviction by the landlord or by assignment of transfer of the tenant's interest. But the Legislature, when it used the words "or otherwise", apparently intended to cover other cases which may not come within the meaning of the preceding clauses, for example, a case where the tenant's occupation has ceased as a result of trespass by a third party. The Legislature, in our opinion, intended to cover all possible cases of vacancy occurring due to any reasons whatsoever. Hence, far from using those words ejusdem generis with the preceding clauses of the explanation, the Legislature used those words in an all inclusive sense. No decided case of any court, holding that the words "or otherwise" have ever been used in the sense contended for on behalf of the petitioner, has been brought to our notice."
(d) In the fourth case from English jurisdiction, again the scope and connotation of words 'or otherwise' was examined and in that context, following observations were made:- " The respondents contended that the phrase "manual labour,clerical work or otherwise is subject to what is called the ejusdem generis rule, so that what is included is manual labour, clerical work or something analogous to other or both, and that the work of professional, technical and administrative workers is not analogous. This contention also seems to me to be ill-founded. The ejusdem generis rule is often useful or convenient, but it is merely a rule of construction, not a rule of law. In the present case it is, in my opinion, entirely inapt. It presupposes a genus but here the only "genus" is a "contract with an employer." That is what constitutes the person a workman, male or female. In earlier authorities "workman" was used to cover labourers or journeymen. Clerical work was added later, because industrial or labour legislation dealt with clerical workers. That again was found inadequate to cover the whole scope of such legislation. In my opinion, "or otherwise" was intended to embrace the entire range of wage earning or salaried employment. "Workman" means anyone, male or female, who works under a contract with an employer subject, no doubt, to the general scope of the legislation......... "
10. Moreover, to show that for the purpose of applicability of section 2(11) of the Ordinance of 1965, no distinction can justifiably be drawn between educational institutions/organizations, whether being run on commercial basis or charitable basis, learned counsel placed reliance on the following cases:--
(a) Adamjee Foundation v. First Sindh Labour Court PLD 1979 Karachi 510, (b) St. Bonaventure's Boys High Schools v. Province of Sindh 2004 PLC 381, (c) Liaquat National Hospital Association v.
Government of Sindh 2006 PLC 364, (d) Muslim Educational Society v. Government of Sindh 2006 PLD 263, (e) Sacred Heart High School v. Director, Social Security, 1997 PLC 729, (f) an unreported judgment, dated 14-12-2009, passed in Constitutional Petition No,D-758 of 2006, titled Al-Baqai Foundation v. Province of Sindh.
(i) In the case of Adamjee Foundation (supra), which was a case in relation to the interpretation of section 2(11) of the Ordinance of 1965, learned single Judge in the chambers of Sindh High Court, making reference to the reported judgment Kohinoor Chemical Co. Ltd. v. Sindh Employees' Social Security. PLD 1977 SC 197, held as under:-- "It therefore, follows that the term "organization" has a very wide and literal import to deliver benefits to its employees regardless of the facts as to of whatever kind the organization may be. In literal sense an organization connotes systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or society furnished with organs for the formal exercise of its appropriate functions. These attributes are very much present and available even in a foundation which has charitable characteristics and is non-profit making. The employees working such foundation are regular employees receiving their salaries or wages and are not distinguishable from employees as defined in section 2(8) of the said Ordinance. The trustees of this foundation step into shoes of employers as they control the administration and have powers of hiring and firing subject to their rules and regulations. It would not be out of place to mention here that in the light of broader and liberal import attached to the meaning of organization in consonance with the preamble and legislative intent of the said Ordinance, in the further classification of "whether industrial, commercial, agricultural or otherwise,", the words "or otherwise" are used disjunctively in a generalized sense to include any other organization to attract operation of this Ordinance if such organization is so notified by the Government as required under section 1(3) of the said Ordinance."
(ii) In the case of St. Bonaventure's Boys High School (supra), a Division Bench of High Court of Sindh examined the scope of rule of "ejusdem generis" in the context of the scope of word "establishment" defined in section 2(11) of the Ordinance of 1965 and making specific reference to the reported case of Don Basco High School PLD 1989 SC 128 and Kohinoor Chemical Co. Ltd. v.
Sindh Employees' Social Security Institution PLED 1977 SC 197; concluded as under:--- "We are of the firm view that the petitioner's schools are "Establishments" within the meaning of the Ordinance and fall within the purview of the Ordinance"
(iii) In the case of Liaquat National Hospital Association, another Division Bench of Sindh High Court making reference to the earlier case of St. Bonaventure's Boys High Schools, endorsed the view that the school might not be an industrial or commercial establishment, but it was clearly covered by the expression "otherwise". Thus a notification declaring schools to be covered by the Ordinance of 1965 was intra vires.
(iv) In the case of Muslim Educational Society (supra), a Division Bench of Sindh High Court examined the scope of wc(rd `establishment' as defined in section 2(11) of the Ordinance of 1965 and affirmed the earlier view taken in the case of St. Bonaventure's Boys High School (supra).
(v) In the case of Sacred Heart High School (supra) with reference to a school/educational institution, qua the definition of word "establishment" under the Ordinance of 1965, keeping in view the provisions of Article 2A of the Constitution and further making reference to several judgments of the apex Court referred to above, Lahore High Court came to the similar conclusion, more particularly, with reference to the nature of the Ordinance of 1965 being beneficial and remedial in nature, which should be so construed so as to advance the remedy and suppress the mischief.
(vi) In the last reported judgment in Constitutional Petition No,D-758 of 2006 (Messrs Baqai Foundation v. Province of Sindh and others), a Division Bench of Sindh High Court, after making detailed reference to the controversy involved in the said petition as regards the import and connotation of words "establishment" as defined in section 2(11) of the Ordinance 1965, affirmed the earlier view that institutions like schools and hospitals, whether working on charitable basis, are fully covered under the definition of 'establishment' as defined in the Ordinance of 1965.
11. We have considered the submissions made by learned counsel before us, carefully perused the case record and scanned all the cases cited before us at the Bar. As the whole controversy raised in this petition revolves around the interpretation, scope, true import and connotation of the definition of word 'establishment' under section 2(11) of the Ordinance of 1965. In the first place, it will be useful to reproduce the same as under:--- "establishment" means an organization, whether industrial, commercial, agricultural or otherwise.'
From the above definition of "establishment" it is quite evident that the use of words 'or otherwise' after the words "industrial", "commercial", and "agricultural" has made it an open-ended definition to cover many other fields, which may not be industrial, commercial or agricultural in nature, but otherwise falling within the ambit of the statute, which has the peculiar feature of being beneficial in nature and is aimed to provide protection to the employees/workers, wherever possible, particularly as envisaged in its Chapter-V.
12. So far as the issue of functioning of some educational B institutions on charitable basis is concerned, in our opinion, it will not place their case on any higher pedestal to exclude them from the applicability of such definition, as such character of charitable nature of an educational institution has nothing to do with the additional benefits offered/extended under the Ordinance of 1965, to their employees. As a matter of fact proverb 'charity begins at home' will be squarely applicable to their cases to justify a fair conclusion that when they are extending/facilitating education in the country on charitable basis, why should they not contribute under the Ordinance of 1965 to extend their quality of charity and benevolence in favour of their own employees. We have already discussed in detail all the relevant case law, most of which, referred by Mr. Sarwana, learned Advocate Supreme Court, is squarely applicable to the facts and, circumstances of this case, and thus leaves no further room for debate open on the point whether or not an educational institution, either being run on commercial or charitable basis can be subjected to the regime of Ordinance of 1965, in view of the definition of word 'establishment' under section 2(11) of the Ordinance. Thus, we hold that the impugned judgment by the learned Division Bench of the High Court, being in consonance with the law earlier laid down by this Court, is unexceptionable and not open to interference.
13. Mr. Sarwana, learned Advocate Supreme Court for respondent, when confronted with the last contention of the petitioners as regards discrimination qua violation of fundamental rights guaranteed under Article 25 of the Constitution, could not offer any satisfactory reply to such arguments either on facts or on law, as admittedly after the promulgation of Ordinance of 1965, for the purpose of issuing notifications under section 1(3) ibid, to bring various establishments under the umbrella of Ordinance of 1965, no specific criteria, reasonable classification or policy has been laid down, but such exercise is being repeatedly undertaken by the respondents through their concerned officials on pick and choose/like and dislike basis, which is discriminatory and thus violative of Article 25 of the Constitution. However, we are of the considered opinion that even if such plea of discrimination raised by the petitioners is sustained, on this account, the impugned notifications cannot be struck down at this stage, except for providing necessary guidelines to the respondent institution to be followed in future in the matter of selection./ enlisting of establishments and bringing them under the ambit of the Ordinance of 1965. In order to elucidate this aspect of the case, a reference to the case of Standard Printing Press v. Sindh Employees'
Social Security Institute, 1988 SCMR 91, will be useful. In this case, when a notification issued under section 1(3) of the Ordinance of 1965 was challenged before the Supreme Court, inter alia, on the touchstone of discrimination/ applicability of Article 25 of the Constitution, detailed survey of case law on the subject, both from the Indian and Pakistani jurisdiction was made and view was formed that even though the statute is silent about the criteria of issuing such notification, it can be subjected to judicial examination on the basis of uncontroverted facts. However, keeping in view the peculiar facts of the case that the controversy .Raised also involved investigation into the disputed questions of fact, and one of the disputing party was not impleaded as respondent in the case, the petition was dismissed.
14. At the time of hearing of these petitions, in order to examine in detail the plea of discrimination and consequent violation of fundamental rights, due to the procedure/practice followed by the respondents for issuing notifications from time to time for bringing various establishments under the ambit of Ordinance of 1965 without laying down any criteria for it, on 15-6-2010 we have asked learned counsel for the parties to make an effort to lay hand on notifications of similar nature issued under some enactments of similar character, having parallel authority for issuance of notifications as contained in section 1(3) of the Ordinance of 1965. We appreciate the efforts of Mr. Sarwana, learned Advocate Supreme Court for the respondent, who in response to this has placed on record a list containing reference of 59 notifications from the Indian jurisdiction, issued under the Indian Employees State Insurance Act, 1948, during the period 1-9-1948 to 18-2-1973 reflecting some sound criteria/classification in each case for bringing different establishments under the cover of said enactment instead of doing so in an arbitrary and whimsical manner as it appears to have been done by the concerned respondents while issuing notifications under the above referred provisions of the Ordinance of 1965, which can be conveniently termed as an exercise of inclusion/exclusion of various establishments in the notification on the basis of favouritism, nepotism or corruption. This position gets strong support from the fact that if not thousands then at least hundreds of other educational institutions, eligible to be brought under the cover of Ordinance of 1965, have not been brought under its umbrella as yet due to non-issuance of requisite notifications. Even two impugned notifications demonstrate similar position. For instance, as per case of petitioner Citizens Foundation, it has been established and functional in various parts of the country for a period of over fifteen years, but it was only vide notification dated, 6-3- 2003 that they were brought under the scheme of the Ordinance of 1965, for which there is no explanation whatsoever for not undertaking such exercise at any earlier time. Similar is the position of other impugned notification dated, 5-12-1996, which shows no specific criteria for inclusion or exclusion of names. Although copies of all the notifications issued under section 1(3) of the Ordinance of 1965 have not been placed on record by respondents to meet this contention, but based on these facts, one can say with reasonable certainty that the two notifications impugned in these petitions are glaring instances of arbitrary exercise of powers by the concerned authorities of Sindh Employees Social Security Institution, Government of Sindh, which is not conducive for any system.
15. In order to further dilate upon the intention of law-makers about the stage-wise implementation of the Ordinance of 1965, reference to section 1(3) of the Ordinance of 1965, will also be useful. For ease of reference the same is reproduced as under:- "(3) It shall come into force at once but shall apply only to such areas, classes of persons, industries or establishments, from such date or dates, and with regard to the provision of such benefits as Government may, by notification, specify in this behalf.
[Notes.--- The scheme of the Ordinance is that it comes into force at once and extends to the whole of West Pakistan, it does not apply to any areas, classes of persons, industries or establishments. This is to be done by a separate notification from such date as may be specified and also in respect of such benefits as may be fixed in the notification. The idea is gradual application and extension of Ordinance as regards areas, industries and benefits depending upon experience gained and the progress made in enforcement."
' A plain reading of this provision of law from the Ordinance of 1965 and the note appended thereto, make it abundantly clear that though it was brought into force at once, but its area-wise and classified application was left at the discretion of the government due to certain practical difficulties in the introduction and implementation of such scheme at once.
16. By now it is a well-recognized principle of law that when an authority is conferred with the power of exercise of discretion in any matter, such power is to be exercised in a judicious, transparent and impartial manner, keeping in view the fundamental principle of nondiscrimination qua reasonable classification, and not in an arbitrary or capricious manner and without any sound criteria for doing so. However, that does not seem to have happened as respondents have failed to show from the record that exercise of discretion for issuing such notifications from time to time, was ever made with some set policy; classification or criterion.
17. Keeping in view this important feature of the case brought to our notice, we hereby direct the concerned officials of the Sindh Employees Social Security Institute and the Government of Sindh, responsible for issuing notifications in terms of section 1(3) of the Ordinance of 1965, to draw a scheme, based on some sound policy/criteria/guidelines, for instance, on territorial basis or nature of the establishments etc., to ensure that the policy of pick and choose is immediately discontinued and a rational/reasonable, classified procedure, which may ensure non- discrimination, is followed in future at the time of issuance of notifications under section 1(3) of the Ordinance of 1965, to bring complete transparency in the system. A copy of this order shall immediately be sent to the governing body of Sindh Employees Social Security Institution, and the Secretary Law, Government of Sindh, for ensuring implementation of the guidelines contained in this judgment.
18. Having carefully considered various contentions raised before us by the parties' counsel, its reply on behalf of the respondents and case law cited at the Bar, which has already been discussed above in detail, we find that there is absolutely no scope for grant of any relief to the petitioners in these petitions or to say, disturb the findings of the learned Division Bench of the High Court of Sindh contained in its common judgment, dated 25-4-2008, which is based on proper interpretation of the relevant provisions of the Ordinance of 1965; following correct principles of interpretation of statutes in this regard as discussed in detail in various judgments cited above.
19. The upshot of above discussion is that both these appeals are dismissed. Parties are left to bear their own costs. 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.