' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of the learned Sindh High Court in Constitutional Petition No,S-295 of 2005 filed by the respondent No,3 Union against the Order passed by the learned Sindh Labour Court No,V. Karachi, whereby same was allowed and such order set aside.
2. The matter has a checkered history. In the first round of litigation the Registrar of Trade Unions (respondent No, 2) had issued a letter dated 24-11-2003 to the respondent No, 3 (hereinafter called the "Union") that vide order passed by the Sindh Labour Appellate Tribunal reported in 1997 PLC 741, the Union was deemed to have no legal status or could still be in existence, rather has lost its legal existence and hence is treated as having ceased to exist. Consequently the registration of the Union was cancelled by the Registrar in exercise of power under section 12(3)(i) of the Industrial Relations Ordinance, 2002 (hereinafter called the "IRO 2002"). Being aggrieved by such Order the Union filed an appeal under section 13 of the IRO 2002 before the Sindh Labour Court No,V which was allowed and the order of the Registrar was set aside. Against such order C.P. No,295 of 2005 was filed by the appellant which was allowed by a learned Single Judge of the Sindh High Court on 16-10-2006. The appellant challenged such finding before this Court through Civil Appeal No,1663 of 2007 and vide order dated 10-62009 same was remanded back to the learned High Court to be decided afresh. Hence the matter was again heard by the learned High Court and the present impugned judgment passed.
3. Mr. Khalid Javed, learned Advocate Supreme Court appearing for the appellant has submitted that the controversy in the matter involves interpretation of the term "Industry" given in section 2(xiv) of the IRA 2008 and the previous enactments since per section 3 of the IRA 2008 workers of any establishment or industry have the right to form a trade union. Per learned Advocate Supreme Court definition of the term "establishment" given in section 2(ix) of the IRA 2008 means any office/firm, factory society etc. Which employs workmen for the purpose of carrying on any business or industry or service etc. In section 2(xiv), "industry" has been defined as any business, trade, manufacture calling, service etc. Engaged in producing goods or services for sale excluding charitable services. According to learned Advocate Supreme Court the appellant does not produce any goods or services for sale to the public and hence cannot be termed as an establishment or industry. In this regard he has submitted that the Memorandum and Articles of Association of the appellant would amply demonstrate that it has been incorporated for the purpose of promoting its members' interest in achieving its objectives which are basically to promote trade, commerce and industry in Karachi and understanding amongst businessmen and industrialists in and outside of Karachi on all subjects involving their common goals and to safeguard their general mercantile interest in and outside Karachi. Further objectives are to settle trade disputes; to promote commercial and technical education; to promote legislation which has any bearing on trade, commerce and industry; to negotiate with the Government regarding rights and privileges which are in the interest of the appellant etc. Hence learned Advocate Supreme Court has emphasized that the appellant does not produce any goods or services for sale to the public since it is a non- profit association and registered as such under section 42 of the Companies Ordinance, 1984.
Consequently the appellant cannot be termed as an establishment or industry so as to come within the mischief of section 2(xiv) of the IRA 2008. In this regard learned Advocate Supreme Court has also emphasized that all income earned by the appellant through contributions etc. From its members is utilized for by way of salaries to staff and other expenses whereas the managerial staff does not get any remuneration. In support of his submissions learned Advocate Supreme Court placed reliance on the cases reported as (i) A.F. Ferguson and Co. v. The Sindh Labour Court and another (PLD 1985 SC 429), (ii) Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others (2001 SCM R 1928), and (iii) Sh. Ahmad Sadiq v. Chief Settlement Commissioner and others (PLD 1974 SC 368).
4. In so far as the cases relied upon in the impugned Judgment to come to the conclusion that the appellant is an industry, learned Advocate Supreme Court submitted that the same are distinguishable as in the case of Army Welfare Sugar Mills Workers Union v. Army Welfare Sugar Mills (2009 SCM R 202 = 2009 PLC 132) it was held by this Court that the Army Welfare Sugar Mills was making a profit and doing business i,e, producing and selling sugar to the public and same conclusion was reached in the case reported as Civil Aviation Authority, Islamabad and others v.
Union of Civil Aviation Employees and another (PLD 1997 SC 781) and Agriculture Workers Union v.
Registrar of Trade Union (1997 SCM R 66). Learned Advocate Supreme Court has therefore prayed that the Appeal be allowed and the impugned Judgment be set aside.
5. On the other hand Mr. Mehboob Elahi, General Secretary of the Union has fully supported the impugned Judgment on the grounds firstly that the Union was registered in 1973 and after thirty years this was cancelled in 2003 which is an afterthought and hence mala fide on the part of the appellant. He has further submitted that during this period at least twenty charters of demands have been agreed to between the Union and the appellant which includes bonuses etc. Per the General Secretary the income of the appellant is from at least twenty sources out of which he has enumerated exhibitions, rent, car parking charges, visa recommendations, revenue generated from advertisements in magazines and annual reports which are sold. Insofar as expenses are concerned these are salaries of staff, entertainment and remuneration etc. Whereas surplus is spent on the appellant's other activities. The General Secretary has further submitted that the appellant pays tax and in support has filed some returns. Hence the cancellation of the respondent Trade Union's registration was motivated by mala fides as the appellant did not want any pro- labour activities.
6. We have heard both the learned Advocate Supreme Court as well as the General Secretary of the Union at some length and perused the record.
7. It would be beneficial to reproduce the definition of the term "Industry" as given in the IRO 2002 and IRA 2008. In the IRO 2002 per section 2(xvii) Industry has been defined as:-- "industry" means any business, trade, manufacturer, 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."
' In IRA, 2008 Industry has been defined in section 2(xiv) as:-- "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".
8. Consequently it would be seen that the only difference between the two definitions is whereas in IRO 2002 charitable purposes has been defined extensively but in IRO 2008 this has not been done.
However meaning of the words "charitable purposes" is quite well understood and in a number of cases it has been held that it pertains to provision of education, medical care, emergency relief and other needs of the poor and indigent as illustrated in section 2(xvii) of the IRO 2002. However it is no ones' case that the appellant can seek exemption under this provision. Coming now to the definition of the term "Industry" in our opinion it is essentially a human activity in which capital and labour are conjoined for the purpose, of producing goods and services for sale as a means of earning a livelihood. However the distinguishable feature is that the earning of profit is not essential since the objectives of the industry may even be to provide any service to the community in an A organized manner wherein profits are not made. It is perhaps for this reason that the words "engaged in an organized economic activity" appearing in the definition of "industry" in section 2(xvii) of IRO 2002 are missing in such definition appearing in section 2(xiv) of IRA 2008. Perhaps the law makers thought that organized economic activity essentially denotes the profit motive. In this regard reference may be made to the case of Army Welfare Sugar Mills (Supra) wherein it was held that the activity in which the entity was involved has to be seen and not the motive for such activity in order to arrive at the conclusion whether the same falls in the definition of industry or not. Hence the argument was repelled that since the trust was set up for the benefit of serving and retired personnel of Pakistan Army and dependents of Shuhada and no part of its profit is spent for any other purpose therefore it could not come within the definition of the term "industry" as defined in the IRO 2002. Late Justice Sabihuddin Ahmed (as His Lordship then was) observed that"- "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 owning the mills was exclusively applied for the benefit of serving and retired army personnel and their dependents. In the above context, 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 entities for legal proposes and retired persons who have acquired the status of civilians are no longer subject to the control and discipline of the armed forces. Perhaps by that token any industrial enterprise exclusively owned by retired army offices 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 their industrial establishment. Indeed it is difficult to attribute any such intention to the legislature".
9. It is not disputed before us that the appellant does provide services both to its members and to the general business community since B as much is abundantly clear from its Memorandum and Articles of Association. It may be that it is a non-profit organization and that the profits earned .By it are not pocketed by its members or the managing committee but spent on the appellant's objectives itself. However, as observed above, this is irrelevant insofar as considering the term "industry" is concerned as per IRO 2002 as well as IRA 2008. So also it would be seen that the services provided by the appellant are for sale inasmuch as it charges fee from its members for such services. Consequently considering the matter from all angles we would conclude that indeed the appellant is an industry as it provides services to its members for a certain fee notwithstanding the fact that profits which it generates are used for its objectives as stated in the Memorandum and Articles of Association. This conclusion is further supported by the fact that the IRO is a beneficial piece of legislation and should be liberally interpreted in favour of the workers as per well settled law for which no precedent need to be cited. Such principle is derived from the fundamental right of the workers to form trade unions per Article 17(1) of the Constitution which guarantees freedom of association. This is amply illustrated in the case of Civil Aviation Authority, Islamabad and others (Supra).
10. In so far as the cases cited by the learned Advocate Supreme Court in support of his contention to the contrary, in our view they are not relevant as in the case of Sh. Ahmad Sadiq (Supra) a distinction was made between industry and business or trade. In fact the definition of the term "industry" as presently available in both the IRO 2002 and IRA 2008 includes business, trade, manufacture, calling etc. Similarly in the case of A.F. Ferguson & Co. (Supra) a mere question was raised by this Court as to whether a firm of chartered accountants would come within the definition of industry as per section 2(xiv) of the IRO 1969. Finally as regards the case of Board of Governors Aitchison College, Lahore (Supra) it was held that an educational institute is neither an industry nor it falls within the definition of an industry or establishment, therefore its employees cannot be considered to be workers or workmen. In our opinion this judgment is only confined to educational institutions where admittedly education was being imparted and hence this was held not to be an industrial activity by this Court. Admittedly the appellant is not in the business of imparting education as its objectives are different.
11. For the foregoing reasons we are of the opinion that the appellant would be squarely covered under the definition of "industry" as provided in IRO 2002 as well as IRA 2008 and hence respondent No,3 has the right to form a Trade Union. Consequently this appeal having no merits is dismissed.