' SHAHID ANWAR BAJWA, J.--- For reasons to be recorded later, these constitution petitions were dismissed vide short order dated 18-10-2010. The following are reasons for the short order.
2. The petitioner in these petitions is Shaheen Air Port Services which is an Establishment and Project of Shaheen Foundation, which Foundation was established by Pakistan Air Force for certain charitable purposes. Shaheen Air Port Services provides various handling services at various Airports in Pakistan. Workmen employed in Shaheen Air Port Services (hereinafter referred to SAPS) formed a Trade union. Registration of such trade union was objected to by SAPS. Consequently complaint was filed by the Deputy Registrar (Registration) NIRC on 27-7-2006 before a two member bench of National Industrial Relations Commission, and the two member bench acting as Labour Court dismissed the compliant vide order dated 14-4-2007 and held that the Industrial Relations Ordinance, 2002 was applicable to the establishment of SAPS. Being aggrieved by this order appeal to Full Bench of NIRC was filed by SAPS. That appeal was dismissed by Full Bench of NIRC vide judgment dated 22-3-2010. Being aggrieved by the order, passed by the Full Bench of NIRC Constitution Petition No,D-1796 of 2010 was filed with a prayer that this Court may be pleased to declare that SAPS is a charitable institution and consequently no Trade Union could be formed in any establishment of SAPS. While this petition was pending Deputy Registrar NIRC consequently initiated the process for determining Collective Bargaining Agent and issued notice and ordered that secret ballot for determination of CBA to take place on 5-7-2010. Second Constitution Petition No,D-2428 of 2010 has been filed to challenge this order.
3. When this matter was listed in the Court for the first time on 17-5-2010 status quo was ordered which has continued from day to day. Consequently the referendum has not yet been held.
Learned counsel for the petitioner referred to notification dated 8-8-1977 issued by the Ministry of Health, Social Welfare and Population Planning, in exercise of powers conferred upon it by subsection (1) of section 5 of the Charitable Endowments Act, 1890. The Notification states that Federal Government was pleased to settle the scheme set out in the schedule for administration of the Shaheen Foundation, PAF. Thereafter the scheme defined beneficiaries and the administration of the endowment. Learned counsel also referred to sections 2, 4, 5 and 14 of the Charitable Endowments Act, 1890 and contended that the Endowment and establishment of Shaheen Foundation, PAF is exclusively for charitable purposes. Learned counsel in this regard also referred to section 42 of the Companies Ordinance, 1984, section 3 of the Societies Registration Act, 1860, section 4 of the Urban Immovable Properties Act and submitted that properties of Shaheen Foundation are exempt from payment of taxes. Learned counsel submitted that since Shaheen Foundation is a charitable Organization it is not right of the employees in any of the Organizations of Shaheen Foundation to set up a trade union. Learned counsel also submitted that entire surplus of income after expenditures is utilized after giving benefits to the beneficiaries and whatever is surplus is transferred to Pakistan Air Force and therefore, the SAPS is exempted from the provisions of the Industrial Relations Ordinance, 1969. Learned. Counsel relied upon Swe-Pak Pharmaceuticals Ltd. v. Registrar, Trade Unions, Balochistan and another, 1992 PLC 405, K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Office Punjab Labour Court, Northern Zone and 6 others, PLD 1976 Lah. 1097, Commissioner of Income Madras v. Andhra Chamber of Commerce, Madras AIR 1965 SC 1281, Provincial Government N.-W.F.P. Province v Ghulam Sarwar Khan, PLD 1960 (W.P.) Pesh. 55, Haji Sheikh Mahboob Ilahi and another v. (Brigadier) K.M. Idris and 2 others PLD 1955 Lah. 242, Army Welfare Food Industries Factory Area, Faisalabad through General Manager v.
Punjab Labour Appellate Tribunal and another 1994 PLC 557, Shaheen Airport Services, Karachi v.
Sindh Employees' Social Security Institution 1992 PLC 1002, National Radio and Telecommunication Corporation Employees and Workers Union, Haripur, through General Secretary v. Labour Appellate Tribunal, N.-W.F.P., Peshawar and 3 others 1990 PLC 218, Haji Malik Aman and 3 others v. Federation of Pakistan, through Secretary, Ministry of Law, Justice and Parliamentary Affairs, Islamabad and another 1993 SCMR 1837, State of Bombay and others v. The Hospital Mazdoor Sabha and others AIR 1960 SC 610, Fazlul Rabbi Pardhan and another v. State of Bengal and others AIR 1965 SC 1722 and Sidhrajbhai Sabbai and others v. State of Gujarat and others AIR 1963 SC 540.
4. Mr. Abid Zuberi, learned counsel for respondent No,3 in Writ Petition No,1796 of 2010 referred to Para (a) and (b) of the counter-affidavit. He submitted that the order passed by the Court below has been passed by relying upon Army Welfare Sugar Mills Workers' Union v. Army Welfare Sugar Mills 2009 SCMR 202.
5. Mr. M.A.K. Azmati, learned counsel for respondent No,4 in C.P. No-D-2428 of 2010, which trade union became a party after filing application under Order I, rule 10, C.P.C. Submitted that after the order was passed by the two member bench of NIRC (acting as Labour Court) a writ petition was filed by the present petitioner before the Islamabad High Court in which initially interim order was passed but thereafter writ petition was disposed of with direction to Full Bench of NIRC to decide the appeal before it within 60 days and it was inconsequence of it that the order impugned in C.P.
No,D-1796 of 2010 was passed. Learned counsel referred to order dated 14-6-2009 passed in C.P.
No,D-1796 of 2010 and submitted that status quo was ordered to be maintained by this order.
However on 28-6-2010 application for interim relief was withdrawn by the petitioner. Learned counsel submitted in C.P. No,D-2428 of 2010 no statement whatsoever was made in respect of status quo granted in the first petition and the application for stay having been withdrawn on 28- 6-2010 and then, an interim order was obtained from this Court and while obtaining interim order this material fact was not only concealed when the matter was argued but was also kept hidden from this Court in the body of the petition itself. Learned counsel relied upon Pakistan Telecommunication Company Limited through General Manager and another v. Muhammad Zahid and 29 others 2010 SCMR 253, Shaheen Airport Services v. Labour Unity Shaheen Airport Services Employees and 2 others Writ Petition No,142 of 1996 decided by a Single Bench of Lahore High Court on 13-2-1998, Employees' Old Age Benefit Institution v. National industrial Relations Commission and others 1988 SCMR 765, Agriculture Workers' Union, Balochistan v. Registrar of Trade Unions, Balochistan, Quetta and others 1997 SCMR 66, Bangalore Water Supply and Sewerage Board v. A.
Rajappa and others AIR 1978. SC 548, Shaheen Airport Services, Karachi v. Sindh Employees' Social Security Institution through its Commissioner and another 2003 PLC 371, Swe-Pak Pharmaceuticals Ltd. v. Registrar Trade Unions and others 1992 PLC 405.
6. While exercising his right of reply learned counsel for the petitioner submitted that the Industrial Relations (Revival and Amendment) Act has been passed by the Sindh Assembly and therefore, the NIRC does not legally exist any more.
7. We have considered the submissions made by the learned counsel and have also gone through the record as well as considerable case law cited at the bar.
8. Mr. Nisar A. Mujahid, extensively referred to notification dated 8-8-1977 issued by the Ministry of Health, Social Welfare and Population Planning whereby the Treasurer of Charitable Endowments for Pakistan settled the scheme for the administration of Shaheen Foundation, PAF. Beneficiaries were defined as those who had served or serving in Pakistan Air Force or as civilians in any Organization of Pakistan Air Force or having joined Pakistan Air Force Institution were invalided out to service on account of any disability, any of the dependents of the above or any PAF Institution. It is further provided that the corpus and/or the income of the foundation shall be used for the purpose of providing relief to the beneficiaries and their dependents. Learned counsel pointed out that all the member's of Committee of Administration comprised of serving Air Force personnel with Chief of Air Staff being Chairman of the Committee. Learned counsel referred to various laws including that of the Income Tax Ordinance and the Companies Ordinance to contend that Shaheen Foundation is an Organization set up for charitable purposes. There is no cavil with this factual aspect and not challenge whatsoever by any of the respondents that Shaheen Foundation is an establishment set up for charitable purposes. Similarly there is no challenge to the position that SAPS is project and establishment of Shaheen Foundation.
9. Learned counsel specifically stated that he is not contending that SAPS is outside the purview of Industrial Relations Ordinance, 1969 because of provisions contained in section 1(3)(a). This aspect indeed has been extensively dealt with by a Division Bench of Balochistan High Court in Swe-Pak Pharmaceuticals Ltd. v. Registrar, Trade Unions, Balochistan and another, 1992 PLC 405. The petitioner in that case was another project of Shaheen Foundation and it was claimed on its behalf that since it is a project of Shaheen Foundation which is foundation created for the benefit of persons connected with the Air Force which Force is immune from the operation of the Industrial Relations Ordinance, 1969. High Court observed that the company was basically manufacturing pharmaceuticals and therefore, "failure of the petitioner Company to carry out manufacturing the commodity at best, would result in great loss, and embarrassment to management but by no stretch of imagination would aversely affect functions of any section or services incidental to or connected with Armed Forces". Thereafter High Court held as under:- "Thus underlying principle for excluding operation of Industrial Relations Ordinance, 1969 to any institution or organization, pre-supposes that services of the employees therein have nexus with functions, responsibilities or obligations relatable to Armed Forces of Pakistan. The honourable Supreme Court in case of Controller Stationery and Forms Government of Pakistan v. The Registrar, Trade Union Sindh and others PLD 1991 SC 353 has specified test for determining basis for applicability or otherwise of section (3) I.R.O. To any organization. Relevant portion is reproduced below:--- "(8) from the above cited cases, it is evident that in order to bring an employee within one of the categories excluded by subsection (2) of section 1 of the I.R.O. It is not necessary that the finances or the funds should come from the Government or installations should be under the control and management and control of a corporate body, but what is important is, whether the person is employed inter alia in any of the Armed Forces of Pakistan or in services or installations connected with or incidental to the Armed Forces of Pakistan or in the administration of the State. Keeping in view the functions of the appellant which not only supplied the printing materials to the various organizations relating to the Armed Forces listed at pages 43 and 44 of the paper book, but also caters for the requirements of all other Government Departments and other State organs/functionaries, and which are used inter alia for facilitating communications between the various Armed Forces establishments and other government functionaries and without which no government department can function, it can be concluded that the appellant's employees are covered by clauses (a) and (b) of subsection (3) of section 1 of the I.R.O. It may be pertinent to point out that in the aforesaid clause (b) of subsection (3) the persons employed as workmen by the Railway, Posts, Telegraph and Telephone Departments, have been excluded from the expression "in the administration of the State" for the purpose of application of the provisions of the I.R.O. It can, therefore, be concluded that the Law Makers wanted to excluded the workmen of the departments specified in clause (b) and not other workmen, who may be employed in the administration of the State."
' Applying the said principle to the instant case it is quite clear that functions of the employees, or manufactured products of the petitioner's concern has absolutely no direct or incidental link or connection with Armed Forces or Administration of State. Mere fact that some of the officers of Armed Forces by virtue of their official status have been designated as Chairman or Director of any concern which otherwise is engaged in manufacturing general products for supplying the same to all classes of people including export abroad would not in our opinion warrant exemption from the provisions of I.R.O. Accordingly formation of Union by the workers in petitioners' organization unless otherwise prohibited is not violative of law."
10. The crux of the arguments of the learned counsel was that since Shaheen Foundation is a charitable organization therefore the Industrial Relations Ordinance, 1969 is not applicable to it.
Learned counsel relied upon a plethora of case-law. First case relied upon by the learned counsel was K.G. Old's case (supra). The question in issue in this case was whether Industrial Relations Ordinance is applicable to educational institution or not. Therefore, the question in issue in the present case was not at all under consideration before the High Court in that case. In Ghulam Sarwar Khan's case (supra) the question was whether Waqaf in that case was a charitable one or not. In Mahboob Illahi's case (supra) similar question was addressed. Army Welfare Food Industries' case (supra), was a case of misconduct by an employee and was decided on that basis and the question in issue in the present petition was not raised therein. National Radio and Telecommunication Corporation's case (supra) involve question whether the organization was incidental to the Armed Forces of Pakistan or not. Same was the question in Malik Aman's case (supra). Hospital Mazdoor Sabha's case (supra) was refereed to by learned counsel in which case the Indian Supreme Court held that the Industrial Disputes Act, 1947 is not applicable to hospital.
However, learned counsel failed to point out that in Bangalore Water Supply' case (supra) and in Safdar Jang's case (supra), Hospital Mazdoor Sabha's case (supra) has been overruled.
Sidhrajbhai Sabbai's case (supra) was in respect of a education institution. Question involved in Fazlul Rabbi Pardhan's case (supra) was with respect to the Wakfs" and Tenancy and applicability of Labour Law was not being considered in it. Similar was the position in the case of Commissioner of Income Tax, Madras (supra). In this case the question was applicability of Income Tax Law and not that of Labour Law. The only relevant case cited by Nisar A. Mujahid, is Shaheen Airport Services, Karachi v. Sindh Employees' Social Security Institution, 1992 PLC 1002. In this case it was held that the Shaheen Airport Services is liable to make contribution under the Provincial Employees' Social Security Ordinance, 1965.
11. On the other hand, Mr. M.A.K. Azmati relied upon unreported judgment by Single Bench of Lahore High Court in Writ Petition No,142 of 1996. The petitioner in that petition was the same as the petitioner in the present petition. In that petition ground of claim for exclusion from I.R.O. Was that SAPS is incidental and ancillary to the Armed Forces and is therefore immune to the Industrial Relations Ordinance, 1969. This contention was rejected. In any case ground for non-applicability of I.R.O. Pleaded in that case was connection with Armed Forces whereas ground in this case is its charitable character. In Employees' Old Age Benefit Institution's case (supra) it was held by the Supreme Court that EOBI performs a service and is therefore amenable to the I.R.O.
1969. Mr. M.A.K. Azmati also referred to Agriculture Workers' Union, Balochistan's case (supra). In this case the Supreme Court referred with approval to Bangalore Water Supply's case. Mr. Azmati also referred Shaheen Airport Services, Karachi's case (supra) where the Supreme Court has held that the present petitioner is amenable to the provisions of the Provincial Employe& Social Security Ordinance, 1969.
12. Mr. Zuberi referred to Army Welfare Sugar Mills Workers' Union's case (supra). The question in that case again was whether Army Welfare Sugar Mills is incidental to the Armed Forces or not. The question of charitable character was not consideration in that case.
13. The question whether an institution engaged in charitable or humanitarian activity would fall within the definition of industry has engaged attention of various Courts in the subcontinent. In the subcontinent it came for the first time before a single judge of Madras High Court in Madras Pinjrapole v. Labour Court (1960) II LLJ686 and it was held that Pinjrapole was not an industry. It may be pointed out that the Pinjrapole was an offshoot of Society for the Prevention of Cruelty to Animals but with a distinct purpose of its own and it was to save the animals from butcher's knife and so that old and infirm cattle, dry and barren cows may be looked after. So it was a case of charity and religion combined together. In writ appeal Division Bench of that Court in Workmen Employed in Madras Pinjrapole v. Madras Pinjrapole AIR 1963 Madras 89 reversed the finding of single Judge and remanded the matter to the Labour Court Observing that "even if the institution at its inception, and as basically defined, be purely humanitarian, nonindustrial and not amenable to any of the tests upon which the definition has been applied, it cannot be gainsaid that, if the institution had largely altered its complexion through the years, so as to have become a focus of economic production, the definition "industry" again might be applicable". The Labour Court upon remand held it to be an "industry" and this judgment was upheld in Madras Pinjarapole v. Their Workmen (1967) II LLJ 399. In similar vein was judgment in Bombay Pinjrapole v. Workmen AIR 1971 SC 2422. In Bangalore Water Supply and Sewerage Board v. A. Rajappa AIR 1978 SC 348, a 7 member bench of the Supreme Court of India in the context of applicability of Industrial Dispute Law to a charitable institution observed as under:--- "125. Can charity be 'industry'? This paradox can be unlocked only by examining the nature of the activity of the charity, for there are charities and charities. The grammar of labour law in a pluralist society tells us that the worker is concerned with wages and conditions of service, the employer with output and economies and the community with peace, production and stream of supply. This complex of work, wealth and happiness, firmly grasped, will dissolve the dilemma of the law bearing on charitable enterprises. Charity is free; industry is business. Then how? A lay look may scare; a legal look will see; a social Ibok will see through a hiatus inevitable in a sophisticated ,society with organizational dexterity and motivational dexterity.
125-A. If we mull over the major decisions, we get a hang of the basic structure of 'industry' in its legal anatomy. Bedrocked on the- groundnorms, we must analyse the elements of charitable economic enterprises, established and maintained for satisfying human wants. Easily, three broad categories emerge; more may exist. The charitable element enlivens the operations at different levels in these patterns and the legal consequences are different, viewed from the angle of 'industry'. For income-tax purposes, Trusts Act or company law or registration law or penal code requirements the examination will be different. We are concerned with it benignant disposition towards workmen and trichotomy of charitable enterprises run for producing and/or supplying goods and services, organized systematically and employing workmen, is scientific.
126. The first is one where the enterprises like any other, yields profits but they are siphoned off for altruistic objects. The second is one where the institution makes no profit but hires the services of employees as in other like businesses but the goods and services, which are the output, are made available, at low or . No cost, to the indigent needy who are priced out of the market. The third is where the establishment is oriented on a humane mission fulfilled by men who work, not because they are paid wages, but because they share the passion for the cause and derive job satisfaction from their contribution. The first two are industries, the third not. What is the test of identity whereby these institutions with eleemosynary inspiration fall or do not fall under the definition of industry?"
' Thereafter the Supreme Court observed that if a charitable adventure is not an organized and systematic activity it absolutely would not fall within the definition of industry. Thereafter it observed as under:---
128. If a business is run for production and/or supply of goods and services with an eye on profit, it is plainly an industry? The Fact that the whole or substantial part of the profits so earned is diverted for purely charitable purposes does not affect the nature of the economic activity which involves the co-operation of employer and employee and results in the production of goods and services.
The workers are not concerned about the destination of the profits. They work and receive wages.
They are treated like any other, workmen in any like industry. All the features or an industry, as spelt out from the definition by the decisions of this Court, are fully present in these charitable businesses. In short, they are industries. The application of the income for philanthropic purposes, instead of filling private coffers, makes no difference either to the employees or to the character of the activities. Good Samaritans can be clever industrialists."
14. The judgment in Bangalore Water Supply's case is still being without an exception followed in India and as stated in Live Stock Workers Union's case (supra) the Supreme Court has specifically approved this particular approach.
15. Thus charity or no charity, it is the "activity" of the establishment that determines whether it falls within the ambit of industry or not. The answer to the question posed in this petition lies in the definition of word "industry" as given in section 2(xiv) of the Industrial Relations Ordinance, 1969.
This question, in somewhat analogous context, was extensively considered by a single Bench of this court which judgment was authored by one of us (Shahid Anwar Bajwa,. J.) in Karachi Chamber of Commerce and Industry through its President v. Sindh Labour Court No,V, Karachi and 2 others 2010 PLC 177 and after referring to the case law tests for the purpose of determining whether a particular activity constitutes "industry" or not were culled as under: - "34. Thus in order to constitute an industry an organization must fulfil the following tests:
(i) That the word 'industry, business, trade, manufacture etc. Are not to be given their respective 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) 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;
(i) 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;
(ii) Profit making is not an essential requirement for bringing an activity within the compass of industry.
(iii) 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."
16. To us it appears that for the purpose of deciding whether a particular organization falls within the ambit of industry or not what is to be decisive is as to what is the nature of activity. If the activity is trade or business or service, or even analogous to trade or business or service it would be an industry. One has to look at the employer-employee interface and see whether it is in the nature of business, trade or industry. Why that industry is being carried or is not a subject for the purpose of Industrial Relations Laws: altruistic motives may be relevant for other minds, but a legal mind will be guided by the nature of activity. It has been aptly observed in K.G. Old's case where reference was made to Federated Municipal and Shire Council Employees of Australia v. Melbourne Corporation 26 CLR 508, wherein it has been observed that "question of profit making may be important from an income-tax point of view, as in many municipal cases in England; but, from an industrial dispute point of view, it cannot matter whether the expenditure is met by fares from passengers or from rate". Even in Bangalore Water Supply's case (supra) it was observed as under:--- "78. Even according to the traditional concepts of English Law, profit has to be disregarded when ascertaining whether an enterprise is a business: "3. Disregard of Profit. Profit or the intention of to make profit is not an essential part of the legal definition of a trade or business; and payment or profit does not constitute trade or business that which would not otherwise be such". (Halsbury's Laws of England, Third Edition, Vo. 38, p 11)."
17. Therefore, whether the organization is for making profit or for use of profit for charitable purposes it is of no relevance whatsoever, as far as applicability of the Industrial Relations law is concerned. Industrial Relations Law looks at the activity of the organization and it is by looking at that activity that it decides whether the organization is amenable to the industrial Relations Law or not.
18. Shaheen Air Port Services functions at various Airports and provides handling services to the incoming and departing airlines including passengers briefing and baggage handling for those Airline. If such activity performed by PIA or any other airline is covered by the Industrial Relations Ordinance, we are unable to see as to why the same activity performed by the petitioner should be immune from the Industrial Relations Law.
19. We therefore hold that the Industrial Relations Ordinance, 1969 is applicable to the petitioner's establishment. We may point out here that in Industrial Relations Advisor Association v. Federation of Pakistan 2010 PLC 359, a Division Bench of this Court has held that with effect from May 1, 2010 the law applicable, in view of expiry of the Industrial Relations Ordinance, 2008 by virtue of section 87(3) thereof is the Industrial Relations Ordinance, 1969.
20. There is another aspect of the matter, though Shaheen Foundation may be, and it appears is a charitable institution but that cannot be said about the petitioner's establishment i.e, SAPS. SAPS only exists for making profit. The fact that it yields its profit to Shaheen Foundation which in turn uses it for charitable purposes could not make SAPS a charitable organization. Doing so would tantamount to making, in the words of Justice. Krishna Iyer' "Good Samaritans" into "clever industrialists."
21. At the fag end of his arguments learned counsel for the petitioner also contended that on promulgation of the 18th Amendment, since entries 26 and 27 occurring in the Concurrent Legislative List have been deleted therefore Industrial Relations Ordinance, 1969 itself has become ultra vires of the Constitution of Islamic Republic of Pakistan because, according to the learned counsel no such power exists with the Federal Legislative. Learned counsel also referred to Industrial Relations (Revival and Amendment) Act, 2010 passed by Sindh Assembly on 28th June, 2010 and assented to by the Governor of Sindh on 2nd July, 2010. Incidentally Ministry of Law, Justice and Parliamentary Affairs has recently issued a clarification in this regard. The same is reproduced as under:--- "The Ministry of Labour and Manpower sought from this division legal opinion that after the enactment of Constitution 18th Amendment, Labour Welfare, being the concurrent list has been transferred to the Province. Now the provinces may legislate on all labour issues including industrial Relations. The Provinces of Punjab and Sindh have already promulgated Provincial Industrial Relations Ordinince/Act wherein it is provided that all the cases pending in National Industrial Relations Commission (N1RC) pertaining to Punjab and Sindh shall stand transferred to respective provinces. However, there exists some ambiguity regarding cases not falling in a single province. In this regard, Chairman, NIRC has sought clarification that all those cases which do not belong to a single province and are in the nature of industry-wise character shall continue to be heard as earlier as National Industrial Relations Commission is functional vide letter No, CLA-602/2010, dated 5th July, 2010.
2. Although by operation of Constitution Eighteenth Amendment, the concurrent Legislative List in the Fourth Schedule to the Constitution of the Islamic Republic of Pakistan has been abolished, however, in the opinion of this Division following is important to note in order to determine the factum of competency or Ministry of Labour and Manpower to legislate:
(a) Under Part- H of Federal Legislative List as is evident from bare reading of Fourth Schedule incorporated in furtherance of Article 70, sub-Article (4) of the Constitution, Entry No,7 makes it more than clear that matters pertaining to the national planning fall within the ambit of Federal Legislative List. Similarly, under entry 13 of Part-H of the said List, the Inter Provincial matters and coordination also fall within the domain of the Parliament.
(b) Entry No,16 in Pat-I of the Federal Legislative List empowers the Federal agencies including the Labour and Manpower Division to carry out actions for research, professional or technical training, etc.
(c) Majlis-e-Shoora (Parliament) shall have exclusive power to make laws with respect to all matters pertaining to such areas in the federation as are not included in any Province.
(d) Conventions of ILO squarely fall in the Federal Legislative List, Fourth Schedule at Sr. No,32, therefore, it is the responsibility of Ministry of Labour and Manpower to legislate on the subject.
(3) This Ministry is of the opinion that the National Industrial Relations Commission may proceed in the matters which do not belong to a single province and are in the nature of national industry- wise character subject to existence of relevant laws.
(4) However, needless to say that the Ministry may take all stakeholders on board.
(5) This issues with the approval of the Minister for Law, Justice and Parliamentary Affairs."
22. It is true that an interpretation placed on legislative instrument by the Federal Government is not binding on any Court because it is only an expression of an opinion. However this Court cannot lose sight of the fact that the union which the petitioner came up against in this Court is an industrywise Trade Union which means that the Trade Union had membership in more than one Provinces. If a Trade Union has membership in more than one provinces a priori the establishment must be existing in more than one provinces and must be involved in some kind of inter provincial trade. Here the word 'trade' is not limited to only buying and selling of goods but it also included services rendered and performed. It may not be out of place to mention that under the United States Constitution Article 1 section 1 legislative power vests in Congress of United States and under Article I section 8 there are 18 items and there is no item relating to labour and such like subject.
However interstate commerce is one of the items (Article I section 8 subsection (3)) and the entire labour law of United States is based on this interstate commerce class therefore, merely because entries 26 and 27 which existed in the Concurrent List have been deleted from the Constitution with the deletion of the Concurrent List does not mean that the jurisdiction of the Parliament tb legislate in respect of situations servires and items which fall within the inter provincial trade has also come to an end. Therefore this ground by the learned counsel appears to be misconceived.
23. Result of the above discussion is that these Constitution Petitions G are dismissed. Above are our reasons for the short order announced in open Court on 18-10-2010.