' FAKHRUDDIN G. EBRAHIM. J.-In this Constitutional petition and the connected High Court Appeal No, 51 of 1976, the common question that arises for or determination is whether the petitioner and the appellant, which are both hospitals, are establishments to which the Industrial Relations Ordinance, 1969 extends. In each case the finding given by the Labour Court is in the affirmative.
2. Mr. Syed Sharifuddin Pirzada, the learned Attorney-General who appears for the petitioners in the Constitutional petition at the very outset stated that the question raised now stands resolved by virtue of the amendment made in section 1 of the Industrial Relations Ordinance, 1969 by Ordinance (LI of 1979) expressly providing that the I. R.
0. Shall not apply to persons employed - "by an establishment maintained for treatment or care of sick, infirm, "destitute or mentally unfit persons." which Ordinance was promulgated on 20th September, 1979. The learned Attorney-General invited or attention to the preamble to this Ordinance which states that there were circumstances existing which rendered it necessary to promulgate the said Ordinance and went on to argue that these circumstances were that there were several cases decided by superior Courts in Pakistan, including this Court, in which there was conflict as to the meaning of the expression "industry" as defined in the Ordinance. These decisions are reported decisions, namely :
(1) A. F. Ferguson & Co. v. The 5th Sind Labour Court, Karachi and another 1974 PLC 98.
(ii) Marie Adelaid Leprosy Centre Employees' Union v. Registrar of Trade Unions, Sind and another PLD 1 1977 Kar. 210 ; which is a judgment impugned in the connected High Court Appeal ;
(iii) Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. The Fifth Sind Labour Court, Karachi and others PLD 1978 Kar. 536 ;
(iv) K. G. Old, Principal, Christian Technical Training Centre Gujranwala v. Presiding Officer, Punjab Labour Court Northern Zone and 6 others PLD 1976 Lah.
1097.
3. The learned counsel also invited or attention to this conflict which has persisted in the Indian jurisdiction also in cases reported in D. N. Banerji v. P. R. Mukhurjee and others, The State of Bombay and others v. The Hospital Mazdoor Sabha and others The University of Delhi and others v.
Ramwatti and others, The Management of Safdar Jung Hospital, New Delhi v. Kuldipsingh Setti and AIR 1978 SC 538. In the cases enumerated at (ii) and (iii) above, have distinct bearing for in the first case it is held that hospital is an industry within the meaning of the I. R.
0., and in the second case hospital was held not to be an industrial or commercial establishment within the meaning of the expression contained in the Standing Orders Ordinance. Mr. Sharifuddin Pirzada further argued that in the Ordinance (LI of 1979) care has been taken in avoiding the use of the expression "hospital" while excluding them from the operation of the I. R.0. For there has been also some controversy as to the correct connotation of the word "hospital". It was in these circumstances that it was argued that Ordinance (LI of 1979) was a curative statute which must be given effect, as such namely, retrospectively, thus rendering illegal awards made against hospitals by Labour Courts under the I. R.
0. Prior to the promulgation of Ordinance (LI of 1979).
4. With respect to the learned Atterney-General it is not so very obvious to us that Ordinance LI of 1979 in so far it purports to exclude from the operation of the I. R.0. "hospitals", has to be given retrospective effect. It may be noticed that in the decisibns referred to by Mr. Sharifuddin Pirzada the controversy was as regards the meaning to be given to the expression "industry" given in the Industrial Relations Ordinance. In Furguson's case, a firm of Chartered Accountants, the view that prevailed was that the artificial definition given to the expression "industry" was wide enough to include the professions. In the Marie Adelaid Leprosy Centre case the reasoning in Furguson case was followed and it was observed :- "that looking at the definition of industry there can be no manner of doubt that a hospital is an industry." ..... ...."It is true that the activities of the respondent Hospital are of a charitable nature. But the scheme of the Ordinance also is of a beneficial nature to ameliorate the conditions of the workman in general. Wherever the Government wanted to provide protection and cover, it has done expressly, as in the case of any person, employed in the Police, or any of the Defence or installations connected with or incidental to the Armed Forces of Pakistan, inculding an Ordinance Factory, etc., as to be found in subsection (3) of section 1 of the said Ordinance."
' In the case of the Seventh Adventist Hospital's case, this Court after examining the objects of the Association running the hospital came to the conclusion that it was neither an industry nor an establishment of industrial or commercial type but is purely a charitable institution run on no profit basis and, therefore, not within the definition of a commercial or industrial establishment contained in the West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968. In the Lahore case the Court was concerned with the question whether an educational institution was an industry within the meaning of the expression contained in the I. R. O.
Which was answered in the negative in these terms : "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 Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of1 2 3 4 industrial and labour laws, these expressions apply to any enterprise which is organised and is systematic depending substantially, if not entirely, on the co-operation between labour and capital, and having as its object, production, distribution and consumption of wealth, or 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."
5. Therefore, it must follow that if the intent of the Ordinance LI of 1979 was to set at rest the controversy whether a hospital was an industry, the Legislature would have more appropriately amended the definition of "industry" in the I. R.
0. And not proceeded to provide for the exclusion of employees of hospitals from the purview of I. R.
0. By amending its section 1 which is the section giving the short title and providing for the extent, application and commencement of the I. R.0. It may also be noticed that this section excludes the employees of establishments like Ordinance Factories maintained by the Federal Government, Security Staff of P. I. A.. Pakistan Television Corporation, Pakistan Broadcasting Corporation, Pakistan Printing Corporation, the Security Papers Ltd., and all these establishments obviously come within the definition of industry, A possible view, therefore, can be that a hospital was regarded as otherwise falling within the definition of industry but section 1(3) while providing for the extent of the application of the I. R. O. Expressly excluded it by Ordinance LI of 1979.
6. For the purpose of the present petition and the appeal, however, I is not necessary to determine this question for Ordinance LI of 1979 goes further by adding a section 3 which reads as follows :- "3. Cancellation of registration of Trade Unions.-Notwithstanding anything contained in the Industrial Relations Ordinance, 1969 (XXIII of 1969), the registration of, and the certificate of registration issued to, the registered Trade Unions in any establishment maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons shall stand cancelled."
' By reason of the aforesaid section the respondent Trade Unions cease to be the Collective Bargaining Agents in the petitioner /appellant respective establishments, which being hospitals, are establishments maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons. In both these cases the awards made by the Labour Court have not been implemented.
The I. R.
0. Recognizes only a registered Trade Union as a Collective Bargaining Agent and since the respondents Unions have, by reason of the aforesaid section 3, ceased to be the registered Trade Unions, they also cease to be the Collective Bargaining Agents in the two employers' establishments. The awards made in for of the respondents Unions, therefore, have become unenforceable in law and therefore, of no legal effect.
7. The result, therefore, is that this petition and the connected High Court Appeal No, 51 of 1976 are allowed. Since the respondent Unions are not defending there will be no order as to costs.
AIR 1953 S C58 AIR 1960 SC 610 AIR 1963 SC 1873 AIR 1970 SC 1407