' SHAHID ANWAR BAJWA, J.--- The facts giving rise to this Constitutional Petition are that respondent No,3 is a Trade Union of workmen registered more than 40 years ago. The petitioner is a Trade Organization registered under the Trade Organizations Ordinance, 1961 having been granted a license under Section 3 of the said Ordinance and is also registered as a non-profit organization under Section 42 of the Companies Ordinance, 1984 and claims that it does not fall in the definition of 'Industry' as defined in the Industrial Relations Ordinance, 2002. Registrar of Trade Unions, Sindh, respondent No,2 in this petition on 24-11-2003 issued a letter to the respondent No,3 (hereinafter called the Union) wherein after referring to an order passed by the Sindh Labour Appellate Tribunal which order is reported at 1997 PLC 741, the Registrar of Trade Unions ordered that "the Union is deemed to have no further legal status or could still be in existence, rather has lost its legal existence and is accordingly treated as having been ceased to exist". Consequently registration of the Union was cancelled by the Registrar in exercise of its power under Section 12(3)(i) of the I.R.O.
2002.
2. Being aggrieved by the order passed by the Registrar, Trade Unions, the Union filed an appeal under Section 13 of the Industrial Relations Ordinance, 2002 before Sindh Labour Court No,V. The present petitioner was not initially impleaded as a party in the appeal but was subsequently added. The learned Labour Court vide order dated 6.5.2005 allowed the appeal and set aside the order passed by the Registrar, Trade Unions by declaring it as illegal.
3. Being aggrieved by the order of the Labour Court, this Constitutional Petition was filed by the present petitioner. This petition came up for hearing on 16.10.2006 and a single bench of this court relying upon Chamber of Commerce and Industry, Karachi v. Presiding Officer, Sindh Labour Court No,3 Karachi and another PLD 1979 Kar. 189, wherein it had been held that the Chamber of Commerce and Industry is a commercial establishment within contemplation of Section 2(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 up held the order of the Labour Court to the extent that the Labour Court had allowed appeal of the Union.
4. Being aggrieved by the order passed by this Court in this petition, Civil Appeal No, 1663 of 2007 was filed in the Supreme Court and the honourable Supreme Court vide its order dated 10-6-2009 came to the conclusion that this High Court in its judgment merely relied upon the case reported as PLD 1979 Kar. 189, which case was with respect to Section 2(b) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and had nothing to do with definition of Industry as contained in the Industrial Relations Ordinance, 2002, set aside the judgment of this Court and remanded the matter to the High Court with the following'observations:--- "(5) Now the question arises, as to whether the principles of law decided in the precedent case were involved in the present case and said judgment was applicable to the legal questions involved in the present case or not. We have perused the precedent case and find that in the said case the plea of Chamber of Commerce and Industries, Karachi before the High Court was that Chamber was not such an establishment as envisaged by Standing Order 10-C and further that within the meaning of same Standing Order Chamber was not such an employer, which could be ordered to pay any bonus. Furthermore, in the said case one of the questions as to whether the Chamber is a "commercial establishment" and it could be termed as "employer" within the meaning of Section 2 of Standing Order, 1968 and definition of "commercial establishment" as defined in sub-clause (b) of Section 2 of Standing Orders, 1968 was considered. In this case all those questions were not involved. It may be noted that in the precedent case the respondents did not seek any relief either under the provisions of IRO, 1969 or IRO, 2002 and their case was that since the Chamber was an establishment within the meaning of Standing Order 10-C, therefore, the Chamber is obligated and it could be ordered to pay bonus to its employees. No such question was involved in the case in hand, as the respondents claimed the relief under the provisions of IRO, 2002. Undoubtedly, registration of Employees' Union was cancelled under the provisions of Section 12 of IRO, 2002 and the respondents filed the appeal U/S 13 of IRO, 2002 which was allowed by the learned Sindh Labour Court. In nutshell, we are of the view that the principle laid down in the case of Chamber of Commerce and Industry, Karachi (ibid) and relied upon by the learned High Court, while dismissing appellant's constitutional petition was not applicable and attracted in the case in hand. The learned High Court erred in law in entirely placing reliance on the said case and non- suiting the appellant without rendering its own findings on the controversies raised by the parties.
Learned counsel for the respondents, when confronted with the afore-noted legal position and questions involved in the present case, has nothing to say much.
(6) In the above perspective, we have examined the impugned judgment and find that the learned High Court completely misdirected itself, while passing the impugned judgment completely relying upon the case of Chamber of Commerce and Industry, Karachi v. Presiding Officer, Sindh Labour Court No,3 Karachi and another ( PLD 1979 Karachi 189),thus the impugned judgment suffers from grave legal infirmity. Since the learned High Court did not render its own findings on any of the controversies involved between the parties, therefore, it will be in the fitness of things to set aside the impugned judgment and remand the case to the learned High Court for its decision afresh."
5. This writ petition therefore came up for hearing on 9-10-2009 when arguments were heard and judgment was reserved.
6. Mr. Khalid Jawaid, learned counsel for the petitioner made the following submissions:---
(1) That petitioner organization is neither an establishment as defined in Section 2(XVII) nor establishment as defined in section 2(XI) of the Industrial Relations Ordinance, 2002.
(2) That petitioner is a Trade Organization licensed under Section 3 of the Trade Organizations Ordinance, 1961. The petitioner is a non-profit organization and duly registered under Section 42 of the Companies Ordinance as required by the provisions of the Trade Organizations Ordinance, 1997.
(3) That the petitioner is neither running any business nor any industry. It is only an association of businessm en created to look after interests of its members. The petitioner has its own building. Part of building has been let out. The petitioner does not run any business. It only receives fee from its members which amount is utilized for meeting its running expenses including wages of employees.
None of office-bearers of the petitioner receives any remuneration. In this regard learned counsel refers to the following from Gazette of Pakistan, Extra Ordinary Published on 18-11-1958.
"(ii) Chambers of Commerce and Industry.-- Data of these organizations will represent several trades and industry in specified areas, and will normally be named after the name of the city or area in which it is located, e.g., Lahore Chamber of Commerce and Industry provided that it may not necessarily represent a trade or industry for which a separate Association has been accorded recognition by Government."
"(13) These bodies will be financed through regular membership, subscriptions-as distinct from sporadic donations-and will function on "no profit, no-loss basis", not as profit earning organizations. Any services rendered by them to non-members shall not be charged for at more than 10% higher than the charges fixed for members."
7. Learned counsel referred to various case law to which we shall return at appropriate place during the course of this judgment.
8. Mr. Rafiullah, learned counsel for the respondent made the following submissions:---
(1) As far as, findings of the Sindh Labour Appellate Tribunal in case 1997 PLC 741 are concerned it is not a binding precedent, firstly because it is a judgment of Sindh Labour Appellate Tribunal which does not constitute a binding precedent for the High Court and even if has some persuasive value, it has, if any, a very weak persuasive value. Secondly, Union was not a party in that case because it pertained not to the petitioner institution but to the Federation of Pakistan Chamber of Commerce and Industry and axiomatic though it may be seen, Trade Union in FPCCI still exists.
(2) The petitioner has National tax number issued to it.
(3) That Section 12 of the Industrial Relations Ordinance, 2002 required the Registrar to conduct an inquiry before passing an order. No such inquiry was conducted.
(4) That in any case the order passed by the Registrar was in excess of his authority under Section 12 because even if it is assumed for the sake of arguments that the Union had been registered in contravention of any of the provisions of the Ordinance, the Registrar at most could under Section 12(1)(i) of the Industrial Relations Ordinance,2002, make a complaint to the Labour Court and could not have on his own cancelled registration of the Union.
(5) That scheme of the Industrial Relations Ordinance, 2002 was that it was applicable to all persons employed in any establishment, a group of establishment except those specified in subsection (4) of Section 1. The learned counsel submitted that the exclusion has to be strictly construed.
(6) That petitioner being a company squarely falls in the definition of workman as defined in the Ordinance of 2002. Learned counsel submitted that Ordinance of 2002 did not make any distinction between a company which is formed for earning a profit and are a non-profit organization.
(7) That the petitioner provides service to the business community.
(8) That the status of the petitioner Union has been repeatedly upheld by the Courts and in this regard he relied upon 1960 PLC 96, which the learned counsel stated is judgment between the same parties, on the same point.
9. Exercising his right of reply learned counsel for the petitioner submitted that the orders passed by the Labour Court and Labour Appellate Tribunal even if they are between the same parties do not constitute a binding precedent for the High Court.
10. I have heard arguments of the learned counsel. I have gone through the case law cited by the learned counsel as well as record of the petition. I shall refer to the case law at appropriate places in this judgment.
11. Crux of the controversy revolves around the question whether petitioner Chamber fails within definition of 'Industry' or not. A look at the history may be instructive in this regard. First definition of "industry" in the field of Labour Laws was given in section 2(e) of the Trade Unions Act, 1926, which with minor modification continued till 1947. It was in the following words:--- "`Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial or agricultural occupation or avocation of workmen".
12. In April, 1947 just a few months before the subcontinent was to be divided into two sovereign States and dawn of freedom was to illumine the horizons from Kanyakumari to Laddakh, (or Khyber to Chittagong, as we once used to say) the Industrial Disputes Act, 1947 was promulgated. Section 2(j) gave definition of "industry" in the following words:- "Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling service, employment, handicraft or industrial occupation or avocation of workmen".
13. In Pakistan, Industrial Disputes Act, 1947 was repealed by the Industrial Disputes Ordinance, 1959, which Ordinance, since the Constitution of 1962 declared labour to be a provincial subject, was repealed in the Province of West Pakistan, by the West Pakistan Industrial Disputes Ordinance, 1959.
Both the successor Pakistani Ordinances continued with the same definition of industry.
14. On 13th November, 1969 Industrial Relations Ordinance, 1969 was promulgated. It repealed, inter alia, the West Pakistan Industrial Disputes Ordinance, 1968 and the West Pakistan Trade Unions Ordinance, 1968. It gave a totally new definition of "industry" and the new definition was in the following words:--- "2(xiv) "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, occupation or avocation of workmen and includes:--
(a) mines, quarries and other works for the extraction of minerals from the earth;
(b) industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished, or in which materials are transformed, including shipbuilding and the generation, transformation, and transmission of electricity or motive power of any kind;
(c) construction, reconstruction, maintenance, repair; alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, sewer, drain, well, telegraphic or telephonic installations, electrical undertakings, gas work, water work, or other work of construction as well as the preparation for the laying of the foundation of any such work or structure;
(d) transport of passengers or goods by road, rail, sea or inland waterway including the handling of goods as docks, quays, wharves or ware house but excluding export by land."
15. However, quick on it heels, Ordinance of 1970 changed the definition to the following: "industry' means any business, trade, manufacture, service, employment or occupation".
16. This definition continued till 25th October, 2002 Industrial Relations Ordinance, 2002 was promulgated on 26.10.2002 which in its Section 2(xvii) provided the following definition of "industry":- "(xvii) "industry" means any business, trade, manufacture, calling, service, occupation or employment engaged in an organized economic activity of producing goods or services for sale, excluding those set up exclusively for charitable purposes, operating, through public or private donations where "charitable purpose" includes provision of education, medical care, emergency relief and other needs of the poor and indigent;"
17. Ordinance of 2002 was repealed by the Industrial Relations Act, 2008 and the Act in Section 2(xiv) gave the following definition of "industry": "(xiv) "industry" means any business, trade, manufacture, calling, service, employment or occupation of producing, goods or services for sale excluding those set up for charitable purposes:"
18. Before leaving this domain of definitions I may mention in passing that in India definition of Industry was amended by Amending Act 46 of 1984. However although rest of the Amending Act was brought into operation in August 1994, this definition has not been brought into operation so far in spite of lapse of a quarter century of water of Jumna having passing by ramparts of Red Fort: it still remains a proposal and is in the following words:--- "Industry means any systematic activity carried on by cooperation between an employer and his workmen (whether such workmen are employed by such employer directly or by or through any agency, including a contractor) for the production, supply of distribution of goods of services with a view to satisfy human wants or wishes (not being wants or wishes which are merely spiritual or religious in nature), whether or not.--
(i) any capital has been invested for the purpose of carrying on such activity; or
(ii) such activity is carried on with a motive to make any gain or profit, and includes;-
(a) any activity of the Dock Labour Board established under Section 5A of the Dock Workers (Regulation of Employment) Act, 1948;
(b) any activity relating to the promotion of sales of business or both carried on by an establishment, but does not include---
(1) any agricultural operation except where such agricultural operation is carried on in an integrated manner with any other activity(being an such activity as is referred to in the foregoing provisions of this clause) and such other activity is the predominant one, ' Explanation. For the purpose of this sub-clause, 'agricultural operation' does not include any activity carried on in a plantation as defined in clause (F) of Section 2 of the Plantations Labour Act, 1951; or
(2) hospitals or dispensaries; or
(3) educational, scientific, research or training institutions; or
(4) institutions owned or managed by organization wholly or substantially engaged in any charitable, social or philanthropic service, or
(5) Khadi or village industries; or
(6) any activity of the Government relatable to the sovereign functions of the Government including all the activities carried on by the departments of the Central Government dealing with defence research, atomic energy and space;
(7) any domestic service; or
(8) any activity, being a profession practised by an individual or body of individuals, if the number of persons employed by the individual or body of individuals in relation to such profession is less than ten; or
(9) any activity, being an activity carried on by a co-operation society or a club or any other like body of individuals, if the number of persons employed by the co-operative society club of other like body of individuals in relation to such activity is less than ten;"
19. Lot of emphasis has been placed by the learned counsel for the petitioner Chamber on registration of the chamber under Section 42 of the Companies Ordinance, 1984 as a non-profit organization.
20. In Lahore Development Authority and another v. Abdul Shakoor and others 1992 PLC 1214, it was held that profit making may not be object for running the enterprise even then the enterprise may fall within the definition of industry. In Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others, 1989 PLC 760, it was again observed that earning of profit in the activity is not essential. It may even provide material service to the community in an organized manner on no profit basis. In Bangalore Water Supply and Sewerage Board v. Rajappa and others, AIR 1978 SC 548, Supreme Court of India referred to Australian case of Federated Municipal and Shire Council Employees of Australia v. Melbourne Corporation 26 CLR 508 (incidentally it is the same case which has been quoted in K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 Others, 19761 PLC 675 and quoted as under:--- "So far as the question in this case is concerned, as the argument proceeded the ground mostly relied upon (after the Councils were held not to be exempt as State instrumentalities) was that the work was not carried on by the municipal corporations for profit in the ordinary sense of the term, although it would generally speaking be carried on by the ordinary Councils themselves to save contractors' profits. If that argument were sufficient, then a philanthropist who acquired a clothing factory and employed the same employees as the previous owner had employed would not be engaged in an occupation about which an industrial dispute could arise, if he distributed the clothes made to the poor free of charge or even if he distributed them to the poor at the bare cost of production. If the contention of the respondent is correct, a private company carrying on a ferry would be engaged in an industrial occupation. If a municipal corporation carried it on, it would not be industrial. The same argument would apply to baths, bridge-building, quarries, sanitary contracts, gas-making for lighting streets and public halls, municipal building of houses or halls, and many other similar industrial undertakings. Even coal-mining for use on municipal, railways or tramways would not be industrial work if the contention of the respondents is correct. If the works in question are carried out by contractors or by private individuals it is said to be industrial, but not industrial within the meaning of the Arbitration Act or Constitution if carried out by municipal corporations. I cannot accept that view. (emphasis, added).
(58) The negation of profit motive, as a telling test against 'industry', is clear from this quote."
21 In Des Raj and others v. State of Punjab and others AIR 1988 SC 1182, it was held that it was not important or material whether the activity is carried on with a view to make any gain or profit or not. Idara-e-Kissan v. Registrar of Trade Unions Lahore and others 1995 PLC 134, petitioner's institution was a registered society; but it did not generate any income. In spite of absence of profit motive, it was held to be an industry because it was "a systematic arrangement for a definite purpose." Therefore the conclusion is unavoidable: in order to constitute industry it is not necessary that the organization must have profit as one of its motives. Holding it otherwise would mean that every company and every Industrialist will be able to escape the dragnet of Industrial Relations Act, 2008 by constituting a trust, even a Waqf-alal-Aulad Trust (after all a major part of Tatas is owned by various trusts) stating that since the purpose is charitable therefore it is not industry. The road, nay a Highway, would be opened to allow escape to every mealy mouthed entrepreneur by making a pompous statement of a feigned charitable purpose and defeat and check mate the welfare labour legislation which untold and unsung generations across the globe have, after bearing unspeakable atrocities and baring unbearable sufferings have brought out to shine its benevolence on teeming millions. Law just cannot be allowed to be check mated by such crude devices.
22. In Army Welfare Sugar Mills Workers Union v Army Welfare Sugar Mills 2009 SCMR 202 = 2009 PLC 132. Mr. Justice Sabihuddin Ahmed, writing for a three member bench of Supreme Court held that a Sugar Mill owned by the Army Welfare Trust is not exempted from provisions of the Industrial Relations Ordinance, 2002. It was contended before his Lordship that Army Welfare Trust is set up for the benefit of serving and retired personnel of Pakistan Army and dependents of Shuhada and it is specifically forbidden that any part of it profit can be spent for any purpose other than welfare of such persons and therefore, the I.R.O. Was not applicable to it. The contention was debunked by the honourable Supreme Court. The Court has to look at the activity and not the motive for such activity in order to arrive at the conclusion whether the activity falls in definition of industry or not.
The motive for the activity is not of much importance. I, therefore, hold that profit motive is not an essential ingredient for bringing an organization within the definition of industry.
23. Second aspect of arguments of Mr. Khalid Jawaid was that the petitioner Chamber is not running a business and is merely an association of businessmen created for the purpose of looking after interestsPLD 1985 SC 429. In this case leave to appeal was granted by the Supreme Court to consider the question "whether profession of chartered accountancy was a "learned profession indistinguishable from legal profession and had same high standard of professional ethics as of legal profession and, therefore, was not covered by definition of "Industry". The Supreme Court observed that the point raised required adjudication of disputed facts and they could only be decided after recording of evidence. Matter was remanded to the Labour Court for recording evidence and adjudication.
24. Since all the mischief as far as the respondent is concerned started with Federation of Pakistan, Chamber of Commerce and Industry Progressive Workers' Union (C. B. A) through the General "Secretary, Karachi v. Messrs Federation of Pakistan, Chambers of Commerce and Industry through General Secretary and another, 1997 PLC 741 it may be advantageous at this stage to refer to that judgment. The total discussion in this judgment on the moot point is in the following words:--- "An 'industry' is defined under section 2(xiv) as any business, trade, manufacture calling service, implement or occupation and Commercial Establishment as explained by the Standing Orders Ordinance is an establishment employing 20 or more workmen including Commercial Agencies, Commission or Forwarding Agents Companies for Insurance Banking, Stock Exchange etc; therefore, the non-profiting organization such as Chambers of Commerce is neither Industry nor commercial establishment, and does not fall within the ambit of I.R.O. Or Standing Orders."
25. A bare reading of the above judgment indicates that only thing which prevailed with the learned Tribunal was that the FPCCI was "non-profiting (sic) Organization" There is no discussion whatsoever in the judgment or reference to any case law or discussion on the nature of activity of the Chamber. Therefore it, at least, cannot be said to a . Judgment arrived at after considering all angles of the moot point of law involved in the case. What to speak of all angle, the judgment does not appear to have looked at any angle at all. As I have held above, to me it seems that profit is not a sine qua non for bringing an activity within the ambit of industry, I do not think this judgment reflects correct position of law.
26. Learned counsel for the petitioner also relied upon K.G. Old's case (supra) wherein it was held that education is not an industry. It was also held in this case that for the purpose of determining whether activity of an organization falls within the scope of industry or not, it is the principal activity and not its ancillary activities that have to be taken into consideration.
27. In Employees' Union, Jamia, Karachi v. Registrar of Trade Unions, Sindh and 2 Others, 1981 PLC 403 petitioner Union was registered as Trade Union under the I.R.O. 1969 and thereafter Registrar filed complaint before Labour Court praying for cancellation of registration of the Trade Union.
Labour Court accepted the complaint and cancelled registration of the Trade Union. Appeal was dismissed by the Labour Appellate Tribunal and matter ended up in the High Court. The High Court held that education is fountainhead of all inventions, learning and knowledge and is distinguishable from benefits of services which provide the community with use of things such as hotel, electric power, transportation, mail delivery, etc. Therefore it was held that education does not fall within the definition of industry. It may be interesting to note that while arriving at the conclusion Sindh High Court relied upon State of Bombay and others v. The Hospital Mazdoor Sabha and others AIR 1960 SC 610 and University of Delhi and another v. Ram Nath and another AIR 1962 SC 1080. As far as Banglore Water Supply and Sewerage Board's case (supra) is concerned, the High Court noted that Banglore Water Supply's case was one "which seems to have put at rest the judicial controversy which was ragging there. With due respect to the learning and erudition of the Judge, it cannot escape our notice that the judgment is based on application of principle of persuasive interpretation which has yet to find full recognition". What the Supreme Court of Pakistan said in Agriculture Workers Union's case, we shall come to latter.
28. In Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No, 2, Lahore and another, 1976 PLC 693 it was held that the National Centre did not answer any of the necessary ingredients of the Commercial or Industrial Establishment. Since this case dealt with the question of definition under the Industrial and Commercial Employment (Standing Orders)
Ordinance 1968, the judgment is not really relevant. Another case relied upon by the learned counsel is Managing Committee, The Punjab Club, Lahore v. The Registrar of Trade Unions, Lahore Region, Lahore and another, 1993 PLC 543, in which it was held that a club being a second home of its members did not fall within the definition of industry. Same'was held to be the position in Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others 1989 PLC 760. It may be relevant to note that this judgment in Punjab Club's case partly relied upon on Madras Gymkhana Club Employees' Union v. Management AIR 1968 SC 554, which judgment itself had been specifically overruled by the Supreme Court of India in Bangalore Water Supply and Sewerage Board's case.
29. What activities constitute industry. In Rawalpindi Club's case (supra) a Single Judge of Lahore High Court observed as under:- "The following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not:
(i) That the word 'industry, business, trade, manufacture are not to be given dictionary meanings.
These words are of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not.
(ii) 'Industry' is a systematic human activity or enterprise in which labour is employed by the employer for the purpose of conducting business as a mean of livelihood earning profit or for rendering material service to the community with the active participation of the workman. In this activity labour and service is provided by workman while the capital is provided by the employer.
(iii) The human activity must not be casual or for recreation. It must not be for a pleas.Ure. It must be carried out by the workmen and employer for the purpose indicated above.
(iv) The human activity is carried out by the workmen at the behest of their masters who are to undertake the task of organization and are to provide the necessary means for carrying out the activities.
(v) The earning of the profits in this activity is not essential. It may even provide material service to the community in an organized manner."
30. In Lahore Development Authority and others v. Abdul Shakoor and others, 1992 PLC 1214 tests were laid down as under:--- "(32) The tests for determining as to whether or not a particular establishment is an industry culled out from the cases cited above, especially K.G. Old's case PLD 1976 Lah. 1079 (supra), are:
(i) that the enterprise in question must be organized and systematic;
(ii) that it should depend substantially if not entirely on cooperation between labour and capital;
(iii) that its object should be production, distribution and consumption of wealth and production of material services;
(iv) that the main object for formation of enterprise or any part thereof should be considered and incidental, ancillary or adjunct purposes are not relevant; and
(v) that profit making may not be the object for running the enterprise."
31. In Banglore Water Supply's case (dicta of which case was approved by the Supreme Court of Pakistan in Agriculture Workers' Union, Balochistan v. The Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCAR 66 it was held as under:---
(a) Where (i) systematic activity, (ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical), (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bills i.e, making, on a large scale Prasad or food) prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthropy animating the undertaking. II. Although section 2(j) uses words of the widest amplitude in its two limbs, their meaning cannot be magnified to overreach itself.
(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. The employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold 'industry' undertakings, callings and services, adventures 'analogous to the carrying on of trade or business'. All features, other than the methodology of carrying on the activity viz. In organizing the cooperation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy. III.
Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more:---
(a) The consequences are (i) professions, (ii) clubs, (iii) educational institutions, (iv) cooperatives,
(v) research institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted from the scope of section 2(j).
(b) a restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non-employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personally, ard the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project. IV. The dominant nature test:
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (AIR 1963 SC 1873) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and the integrated nature of the departments as explained in the Corporation of Nagpur AIR 1960 SC 675 will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby."
32. Sub-Engineers of irrigation department were held to be employed in industry in Superintending Engineer (HQ) Irrigation, Lahore Zone and another v. Punjab Labour Appellate Tribunal and others 1987 PLC 180. Employees of Co-operative Model Town Society were held to be employed in industry in Cooperative Model Town Society v. Punjab Labour Appellate Tribunal and 2 others, 1995 PLC 655.
Similarly Lahore Development Authority 1992 PLC 1214, Water and Sanitation Authority 2003 PLC 86, Sarhad Development Authority 2006 PLC 538 have been held to be industry. The common strand in all these appears to be that they are State or State controlled entities, profit is not their motive and primarily they work for the community at large.
33. There is another very instructive case which is reported as Ahmedabad Textile Industry's Research Association v. State of Bombay and others 1961 PLC 567. The Supreme Court of India referred to the tests laid down in State of Bombay and others v. The Hospital Mazdoor Sabha and others (1960) 17 F.J.R. 423, where it had been observed that words used in the definition of 'industry' are of very wide denotation but a line would have to be drawn in a fair and just manner as to exclude some callings, services or undertakings. If all the words used therein were given their widest meaning, all services and all callings would come within the purview of the definition including those services rendered by a servant purely in a personal or domestic matter and even in a casual way. It was further held in Hospital Mazdoor Sabha's case that the activity may not involve an economic activity in which capital is invested and which is carried on for profit or for the production and sale of goods by the employment of labour. It was further held that absence of investment of any capital would not necessarily mean that an undertaking was not included within definition of industry. Thereafter the Supreme Court noted the object of the association and said the object included research and other scientific activities in connection with the textile trade and industry. The Supreme Court noted that research to be conducted was for the purpose of investigation into manufacture and improvement of materials used in the textile industry, utilization of the products of the industry etc. Thereafter Supreme Court noted that this made clear that though association had been established for research the main object of the research is benefits of the members of the association and finally the following conclusion was recorded:--- "We are of the opinion, considering the objects and the Rules and Regulations of the appellant association, that it answers the tests laid down in the Hospital case and must be held to be an undertaking within the meaning of section 2(j). It is an activity systematically undertaken; its object is to render material services to a part of the community (namely, member-mills) the material services being the discovery of processes of manufacture etc. With a view to secure greater efficiency, rationlisation and reduction of costs of the member-mills; it is being carried on with the help of employees(namely, technical personnel) who have no rights in the results of the research carried on by them as employees of the association; it is organized or arranged in a manner in which a trade or business is generally organized; it postulates cooperation between employers (namely, the association) and the employees(namely, the technical personnel and others) which is necessary for its success, for the employers provide monies for carrying on the activities of the association and its object clearly is to render material services to a part of the community by discovery of processes of manufacture, etc. With a view to secure greater efficiency, rationalization and reduction of costs. The activities of this association, therefore, have, in our opinion, little in common with the activities of what may be called a purely educational institution. It is true that the employees who have raised the present industrial dispute do not actually contribute to the research, which is carried on under the appellant association; but the manner in which the association is organized and the fact that the technical personnel who carry on the research are also employees who have no rights in the result of their research, clearly show that the undertaking as a whole is in the nature of business and trade organized with the object of discovering ways and means by which the member mills may obtain larger profits in connection with their industries. In these circumstances we have no hesitation in coming to the conclusion that the appellant association is carrying on an activity which clearly comes within the definition of the word "industry" in section 2(j) and which cannot be assimilated to a purely educational institution.
In this view of the matter, when a dispute arose between the appellant and some of its employees, was an industrial dispute and could be properly referred for aadication under the Act."
34. In order to constitute an industry an organization must fulfil the following---
(i) The word 'industry, business, trade, manufacture etc. Are not given their respective dictionary meanings. These words of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not.
(ii) It must be a (i) systematic activity, (ii) organized by cooperation between employer and employee (iii) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes;
(iii) That the main object for formation of enterprise or any part thereof should be considered and incidental, ancillary or adjunct purposes are not relevant. Pith and substance test should be as applicable here as it is applicable for determining whether an employee is a workman or not;
(iv) Profit making is not an essential requirement for bringing an activity within the compass of industry.
(v) True test is functional: the activity of an organization. If the activity is or is even analogous to trade and business or service it would be industry. One has to look at the employer -employee interface bears resemblance to what happens in business in industry.
(vi) Activity may not involve an economic activity in which capital is invested.
(vii) Sovereign functions do not fall within definition of industry. But sovereign functions should not be treated to include every function carried on by the State. Sovereign function are limited to only those functions which can only be carried on by the State and no private individual can undertake any of these functions.
35. Mr. Khalid Jawaid's emphasis was that the petitioner Chamber was created to look after the interest of its members and for that reason it does not constitute an industry. A somewhat similar argument was advanced but with other side of the coin in Army Welfare Sugar Mills's case and it was contended that Army Welfare Trust was created for the purpose of benefits of retired and serving personnel of the Armed Forces. The honourable Supreme Court held that if an industrial activity is conducted by retired persons of the Armed forces it would not be exempted from the provisions of the Industrial Relations Ordinance, therefore how can an activity by the Chamber for the benefit of the same members be placed outside the ambit of "industry". Relevant observations occurred in Para.13 of the case report and are in the following words:--- "(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 owing the mills was exclusively applied for the benefit of serving and retired army personnel and their dependents. In the above contest, 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 legal proposes and retired persons who have acquired the status of civilians are not 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."
36. By the same logic when business activity of a member of the Chamber is not exempt from the swa y of the I.R.A. 2008 how can activities of the Chamber for the benefit of the same members be exempted from the I.R.A.
2008. It would be anomalous to argue that if a member of Chamber works for his own benefit his activity attracts mischief (from, may be, his point of view) and his workers are entitled to protection, of the Act of 2008 but when the Chamber works for the benefit of the same member its activity is a sacred cow, at least as far as the Industrial Relations Act is concerned. In the Management of the Federation of Indian Chamber of Commerce and Industry v. Their Workman R.K. Mittal AIR 1972 SC 763 objectives of the Federation of Chamber of Commerce and Industry were taken note of by the Supreme Court and these included (a) to promote Indian business in matters of inland and foreign trade, transport, industry and manufacture, finance and all other economic subjects; (b) to promote, support or oppose Legislation and other affecting economic interests and in general to take initiative to assist and promote trade, commerce and industry; (c) to provide for arbitration of dispute arising in the course of trade, industry, or transport; (d) to conduct, undertake, to conduct or participate in national and international exhibitions; (e) to exhibit products of India in other countries and to participate in such activities. The Supreme Court noted other functions of the Indian Commerce and Industry and then finally came to the following conclusion:--- "(29) These extracts have been given in some extenso to show that the Federation carries on systematic activities to assist its members and other businessmen and industrialist and even the non-members as for instance in giving them the right to subscribe to their bulletin; in taking up their cases and solving their difficulties and in obtaining concessions and facilities for them from the Government. These activities are business activities, are material services which are not necessarily confined to the illustrations given by Hidayatullah, C. J., in the Gymkhana case, 1968-1 SCR 742= (AIR 1968 SC 554) by way of illustration only, rendered to businessmen traders and industrialists who are members of the constituents of the Federation. There can in our view be no doubt that the Federation is an industry within the meaning of S. 2(i) of the Act."
37. Mr. Khalid Jawaid did place considerable reliance on changes in definition of industry between the Industrial Relations Ordinance, 1969, the Industrial Relations Ordinance, 2002 and the Industrial Relations Act, 2008. These definitions have been reproduced above.
38. On the touchstone of definition of industry as given in section 2(xvii) of the Industrial Relations Ordinance, 2002, Mr. Khalid Jawaid strenuously argued, that this petition must be decided. This definition consists of essentially three parts. The first part ends with the word "employment" and it is almost exactly the same as it was in its final shape in the I.R.O. 1969; the second part is "engaged in an organized economic activity for producing of goods or services for sale", and the third part is: "excluding those set up exclusively for charitable purposes, operating, through public or private donations where "charitable purpose" includes provision of education, medical care, emergency relief and other needs of the poor and indigent."
39. Taking the second part first, the second part qualifies the first part by saying that it must be engaged in organized economic activity for producing of goods or services for sale. As far as "organized economic activity" is concerned, as I have concluded above from various judgments including Banglore Water Supply (Supra) and Lahore Development Authority cases (Supra) being organized economic activity has all along being considered by the Courts as an essential ingredient of definition of industry. Unorganized, casual and performed for pleasure activities have never been held to fall within the definition of industry. As far as, word 'economic' is concerned it has not been anyone's case that word "economic" is synonymous with word "profit". And indeed it cannot be. Economics is discipline which deals with utilization of scarce resources. Concise Oxford Dictionary (Eleventh Edition) defines it as "the branch of knowledge concerned with the production, consumption, and transfer of wealth". Any organization be it for profit or be it for non-profit has scarce resources compared to what it considered its need to be. The Chamber does perform very valuable economic function. Economic activity not only include an activity solely meant for making profit but also the activities which are in the nature of enabling activities to enable the society and the business organizations to efficiently and effectively operate and perform their functions and duties. Thus, water and sanitary wastage disposal is an economic activity: it may not be earning a profit by disposing of sewerage and waste: but without it the entire civic activity and consequently business activity would come to a grinding halt. In the same colour, context and complexion are the activities of Chamber of Commerce.
40. But the definition did not stop there. Thereafter, the words used are 'for sale'. Is the word sale to be used in the sense buying and selling transaction that take place in the market or is activity performed by a fee charging organization also in the nature of sale. After all members utilise services of chamber and in return pay fee to it. Chamber of Commerce charges a fee from its members ostensibly for providing them the service that it provides to them. This fee is not a tax. I may state here that the distinction between the fee and the tax is that a fee is paid, it may be voluntarily or involuntarily, where some services are rendered by the organization to which a fee be paid whereas a tax is a sovereign levy and a forced appropriation of property of citizens and persons by the State. Justification, at least in the legal sense (in contradiction to the political sense a la Dicey) is command of the sovereign or an Act of the Parliament. Whereas for a fee, as I said above, it may voluntarily or in voluntarily some service is or is supposed to be provided. In K.G. Old's case (supra). It was held that words used in the definition are not to be used in their dictionary sense but are to be used in common parlance sense. Therefore, sale would include not only situations where the organization is not functioning by directly selling a product or service but also situations where the entity is charging fee for its services which it performs for its members or for the general public.
41. The third part of the definition we need not go into. Firstly because it is limited only to needs of poor and indigent and secondly it must be operating (in contradiction to established) through public or private donations. The Industrial Relations Act, 2008 has chosen not to limit the "charitable purpose" to needs of the poor and indigent and also condition of operating through public or private donations has not been tagged. Therefore, if any definition given in the I.R.A. 2008 is narrower in compass than the definition given in I.R.O. 1969 or I.R.A.2008. Word Charitable is defined in Blacks Law Dictionary as: Having the Character or the purpose of a charity. The word "charitable" in a legal sense includes every gift for a general public use, to be applied consistent with existing laws, for the benefit of indefinite number of persons, and designed to benefit them from an educational, religious, moral, physical or social standpoint. ... This term is synonymous with "beneficent", "benevolent" and "eleemosynary". In K.J. Aiyar's judicial dictionary with reference to P.C.
Rajaratnam Institution v. Municipal Corporation of Delhi, AIR 1960 SC 816 it was stated that "The test of `charitable purpose' is satisfied by the proof of any of the three conditions, namely, relief of the poor, education, or medical relief. The fact that some fee is charged from the students is also not decisive in as much as the proviso indicates that the expenditure incurred in running the society may be supported either wholly or in part by voluntary contribution." Religious purposes were also included in charitable purposes. Thus whether stated or not, charitable purpose have necessary and inseparable concomitant help to the poor and indigent. Therefore since primary purposes of the Chamber are neither, religious, nor educational, nor relief to the poor and nor medical, it in any case does not fall outside the sweep of the definition of industry.
42. I may advert to third argument advanced by Mr. Rafiullah. First of all Mr. Rafiullah relied upon Karachi Chamber of Commerce and Industry v. Karachi Chamber of Commerce and Industry Employees Union, 1960 PLC 96. This was a case decided by Industrial Tribunal Karachi between the same parties who are arrayed as parties in this petition. Objection was raised by the petitioner Chamber in 1960 that it did not fall within the definition of industry and Industrial Tribunal observed: "I think this objection has no force. Industry has been defined in the Act (Industrial Disputes Act, 1947) as "industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen. This definition is indeed very wide and would apparently include the Chamber". Precise contention of Mr. Rafiullah's was that this judgment operates as res judicata and therefore, it is not available to the Chamber to contend otherwise because it did not challenge judgment which was given to it in 1960.
43. There are three possible answers to this; firstly the judgment was given with reference to the definition in the Industrial Disputes Act, 1947 by an Industrial Tribunal. It is not a pronouncement by a superior Court. Secondly, no case law has been discussed or cited in the judgment and thirdly, the Tribunal itself has used the word "apparently". The basic issue dealt with in this case was retrenchment and termination of services of permanent worker, which issue pertains to the Industrial and Commercial Employment (Standing Orders) Ordinance and not to the domain of Industrial Relations laws. If I go by Mr. Rafiullah's logic I shall fall in the same pit to which the order dated 16.10.2006 consigned this petition. Therefore I do not think that on the basis of judgment of 1960 on a question of law of lasting importance the petitioner should be knocked out and that too on the basis of a judgment which only held that "apparently" the Chamber did not fall within the definition of industry.
44. The more sweeping argument of Mr. Rafiullah was that scheme of I.R.O. 2002 was that it was applicable to all employees in establishments, group of establishments or industry except those specified in sub-section (4) of Section 1. Learned counsel submitted that exclusion has to be strictly construed. In order to appreciate the argument provisions of Section 1 subsection (4) of the Industrial Relations Ordinance, 2002 are quoted below: "1(4) It shall apply to all persons employed in any establishment or group of establishments or industry except those employed:"
' 'Similar provisions was contained in Section 1(3) of the I.R.O, 1969:--- "1(3) It shall not apply to any person employed--" and Industrial Relations Act, 2008: "1(3) It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed:"
45. Since the words 'establishment' and 'industry' have been used, it would be appropriate to reproduce definition of 'Establishment' and "workman". Section 2(ix) of I.R.A. 2008 and Section 2(xi)
IRO 2002 give definition of establishment and definition of workmen is section 2(xxix) of I.R.A. 2008 and section 2(xxx) of I.R.O. 2002, and are as under:--- "Section 2(ix) of I.R.A. 2008: 2(ix) "Establishment" means any office, firm, factory, society, undertaking, company shop, premises or enterprise, which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its branches and establishments, whether situated in the same place or different places and except in section 30, includes a collective bargaining unit, if any, constituted by an establishment or group of establishments;"
' Section 2(xi) of I.R.O. 2002: "2(xi) "establishment" means any office, firm, factory, society, undertaking, company, shop, premises or enterprise which employs workmen directly or through a contractor for the purpose of carrying on any business or industry and includes all its departments and branches, whether situated in the same place or in different places having a common balance sheet and profit and loss account and, except in section 54, includes a collective bargaining unit, if any, constituted under that section in any establishment:"
' Section 2(xxix) of I.R.A. 2008: "2(xxix) "Worker" and "workmen" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employiment be express or implied, and for the purpose of any proceedings under this Act in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
' Section 2(xxx) of I.R.O.2002: "2(xxx) "worker" and "workmen" means any and all persons not falling within the definition of employer who is employed in an establishment or industry for remuneration or reward either directly or through a contractor, whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay-off or removal has led to that dispute but does not include any person who is employed mainly in a managerial or administrative capacity."
46. Subsection (3) of Section 1 of the Act of 2008 (which is identical to sub-section (4) of Section 1 of Ordinance 2002) states that the Act of 2008 as was Ordinance 2002 would be applicable to all persons employed in any establishment or industry. Thereafter certain establishments were specifically stated to which the I.R.A. 2008 would not be applicable. The first thing is to be noticed is that word "any": precedes the words "establishment or industry". Word 'any' was interpreted by the honourable Supreme Court in lftikhar Ahmed and others v. President National Bank of Pakistan and others PLD 1988 SC 53 holding that word any gives amplitude to the context of the word to which it is prefixed. Word "any" is synonymous with every or all and it would include every kind of thing of the type to which it is prefixed. Rehmat Ali v. The Security Papers Ltd. And another PLD 1982 Kar.
913. Thereafter two words are used: 'establishment' and 'industry'. Establishment in turn is defined to mean any company, society etc., which employs workmen for the purpose of carrying on 'any business or industry'. The legislature after having defined the word 'industry' which itself includes word business deemed it appropriate to add the word `business' apart from the word industry in the definition of establishment and then while defining a worker again it said a worker is one who is employed in any establishment or industry. It goes without saying that bad drafting is an endemic future of the I.R.O. As has been held by this Court in Brooke Bond (Pakistan) Ltd. V. Conciliator appointed by the Government of Sindh and 6 Others, 1973 PLC 111, but a Court interpreting could not ignore the words used by the legislature. In my opinion, the reason the legislature has used the word business besides the word industry in the definition of establishment (although the word Indust;' included the word business as defined in the Act) is that legislature wanted to expand the scope and to bring as many people within the compass of the I.R.A. 2008 as possible. In view of what I have held above that activity of the Chamber partakes to nature of industry. I do not think this is an appropriate case to decide contention of Mr. Rafiullah that except the eight categories of organizations as stated in sub- section (3) of Section 1 of the Act, the Act encompass employees in all other organizations. That issue is left for decision in an appropriate case.
47. The next objection of Mr. Rafiullah is regarding jurisdiction of the Registrar of Trade Unions to pass the order that he did pass. The operative part of the order of Registrar Trade Unions has been quoted above. Subsection (1) of section 12 and subsection (3) of section 12 of the I.R.A. 2008 are in the following words:--- "12(1) The registration of a trade union shall be cancelled if the Labour Court so directs upon a complaint in writing made by the registrar that the trade union has---
(a) contravened or has been registered in contravention of, any of the provisions of this Ordinance or the rules;
(ii) contravened any of the provisions of its constitution; or
(iii) made in its constitution any provision which is inconsistent with this Act or the rules."
"12(3) The registration of a trade union shall be cancelled by the Registrar if, after holding such enquiry as he deems fit, he finds that such trade union has dissolved itself or has ceased to
48. Clearly power that was exercised by the Registrar was under subsection (3) of section 12.
Scheme of Section 12 appears to be that Registrar has the power to cancel registration of a Trade Union after holding such inquiry as he deems fit (Mr. Rafiullah's contention was no inquiry whatsoever was held but it need not be decided and in fact it cannot, normally, be decided in constitutional jurisdiction) , if he comes to the conclusion that the Trade Union has dissolved itself or has ceased to exist. It is nobody's case, not even of the Registrar, that the Trade Union dissolved itself: it has remained alive and kicking for six years, till today. Therefore order was passed by the Registrar under the provision which authorizes him to cancel the registration of a Trade. Union if the Registrar comes to the conclusion that the Trade Union has ceased to exist. On what basis had the Registrar come to such conclusion in this case. The Registrar came to this conclusion because an order was passed by the Sindh Labour Appellate Tribunal that FPCCI is not industry. Neither this Union nor this Chamber was a party in the proceedings. Even if it is assumed for the sake of argument that order by the Sindh Labour Appellate Tribunal was right, correct and sustainable in law it baffles me as to how that order could have the effect of bringing the Registrar to the conclusion that Trade Union had ceased to exist. At the best the Registrar could have said that the Trade Union had ceased to be a lawfully registered Trade Union. That is different from saying that the Trade Union had ceased to exist. In fact the Registrar used quite a contrived language: "the Union is deemed to have no further legal status or could still be in existence, rather has lost its legal existence and is accordingly treated as having been ceased to exist". He used words like "deemed", "no further legal status" and "treated". Why didn't he shoot straight and say: "The Union has ceased to exist." His words are an example, though a pathetic one, of obfuscation, if I may say so with all due respects.
49. What the Registrar could have done was, at the best for the Chamber and at the worst for the Union, to say that after interpretation given by the Labour Appellate Tribunal and since interpretation means that what the Court was saying was that this was what the law had always been and therefore, registration of the Union was in contravention of the law and file a complaint before the Labour Court under section 12(1)(i) of the I.R.A.
2008. Therefore, acting on his own the Registrar did not have any jurisdiction to cancel registration of the Trade Union and therefore, I find on this score even, the order passed by the Registrar as one without lawful authority and of no legal effect.
50. The result of the above discussion is that it is held that the Industrial Relations Ordinance, 2002 and also Industrial Relations Act, 2008 are fully applicable to the Chamber of Commerce and Industry and activities of the Chamber, fall within the definition of 'industry' and establishment as defined in the Act of 2008 and its predecessor statutes. Act of cancellation of registration by the Registrar Trade Unions was without lawful authority and of no legal effect. The writ petition is allowed and the order passed by the Labour Court on 6-5-2005 is upheld. In the peculiar circumstances of the petition, the parties are left to bear their own costs. I would be failing in my duty if I do not record here my deep appreciation of hard work put in by the learned counsel.