MUHAMMAD SAJID MEHMOOD SETHI, J.- Brief facts, as narrated in the petition, are that respondent No. 2 / Secretary, Employees Union, Board of Intermediate and Secondary Education, Lahore (hereinafter referred to as 'Secretary'), filed an application on 15.01.2014 before the District Officer, Labour, for registration of trade union before respondent No. 1 / Registrar of Trade Unions, Lahore Region, Lahore (hereinafter 'Registrar'), under the name of "Employees Union of Board of Intermediate & Secondary Education, Lahore", which culminated into a communication by respondent No. 1 / Registrar to petitioner by way of letter dated 10.04.2014. Petitioner, that is, Board of Intermediate and Secondary Education, Lahore (hereinafter 'Board'), after coming to know about the registration letter dated 10.04.2014, which was received on 19.04.2014, filed a complaint before respondent No.1 / Registrar. Registrar rejected the complaint of Board on 31.05.2014 with the following observations:- "It is to inform that Employees Union Board of Intermediate & Secondary Education Lahore has rightly been formed and registered with this office under the Provisions of Punjab Industrial Relation Act, 2010. No doubt the Board of Intermediate & Secondary Education make arrangements for the educational examinations by securing certain fee from the individual candidate and as such this establishment runs on commercial basis, it is therefore section 1 (3) (h) of the Punjab Industrial Relations Act, 2010 does not apply to it."
Respondent No. 1 / Registrar issued letter dated 25.07.2014 to the petitioner / Board directing the petitioner to submit information for Collective Bargaining Agent (hereinafter 'CBA'). Petitioner was constrained to send letter dated 08.08.2014 to the Registrar requesting him for recalling his order, but the same was reverted back in terms of letter dated 29.08.2014, which required a list of employees for the determination of CBA and then, the Registrar passed the order dated 11.11.2014 in which, respondent No. 2 / Secretary was graded as CBA of petitioner / Board. The act of registration of Trade Union by the Registrar under Punjab Industrial Relations Act, 2010 (hereinafter 'PIRA'), and issuance of certificate of Collective Bargaining Agent, have been assailed through the instant petition, with the following prayer:- "It is, therefore, respectfully prayed that the action of respondent No.1 in registering the respondent No.2 as a Trade Union and all other proceedings taken this behalf by respondent and intended to be taken in future, as is ordered by Annexures B & H may be declared without lawful authority and are, therefore, void, coram non-judice. Consequently the order of registration of respondent No.1 as Trade Union be set aside and declared to have no legal effect.
It is further prayed that the operation of the impugned orders may be suspended during the pendency of this writ petition."
2. Learned counsel for petitioner submits that respondent No.1 has no lawful authority to take up any proceedings regarding the registration of a Trade Union or to grant a certificate in that respect and to take up proceedings regarding determination of CBA or any other proceedings under the PIRA, against and in respect of the employees of Board as the provisions of PIRA, 2010 are not applicable to the Board and its employees. Learned counsel has also stressed upon the provisions of section 1(3)(h) of the PIRA, and contends that Board is exempted from the application of the provisions of the PIRA and impugned registration by the respondent No. 1 / Registrar is absolutely illegal and without lawful authority. Learned counsel for petitioner / Board has placed reliance upon the judgments reported as Canteen Stores Department Employees Welfare Union, Karachi v.
Canteen Stores Department and others (1983 SCMR 1101), K. G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097), Managing Committee Attock Industrial School, Morgah, Rawalpindi through Executive Member v. Presiding Officer, Punjab Labour Court No.2 Lahore and another (PLJ 1985 Lahore 308), Board of Intermediate and Secondary Education, Gujranwala, through its Chairman v.
Registrar of Trade Unions, Gujranwala and another (PLJ 1993 Lahore 75), Board of Intermediate and Secondary Education, Rawalpindi through Secretary v. Assistant Commissioner of Income Tax and Wealth Tax, Circle 27, Rawalpindi and 2 others (2004 PTD 2176), Mst. Rouhi Nasim v. Fauji Foundation, etc. (1998 TD (Labour) 138).
3. On the other hand, learned counsel for respondent No. 2 submits that petitioner has alternate remedy in the form of filing an appeal under section 42 of the PIRA, which he has failed to avail thus, instant writ petition is not maintainable under the law. Further contends that petitioner is a commercial organization earning profits of millions of rupees every year and falls within the definition of commercial organization disentitling itself from the exemption available to an educational institution. Further submits that exemption is available only to those educational institutions which are not being run on commercial basis. The petitioner / Board, being run on commercial basis, is not entitled to the exemption under section 1(3)(h) of the PIRA. Learned counsel for respondent No. 2 has placed reliance upon Agriculture Workers' Union, Balochistan v.
The Registrar of Trade Unions, Balochistan, Quetta and others (1997 SCMR 66), Civil Aviation Authority, Islamabad, and others v. Union of Civil Aviation Employees and another (PLD 1997 Supreme Court 781), Lahore Development Authority through D.G., Lahore and another v. Abdul Shafique and others (PLD 2000 Supreme Court 207), Union of Civil Aviation Employees, Lahore and another v. Civil Aviation Authority, Islamabad through its Director-General and 3 others (PLD 1993 Lahore 306), Pakistan State Oil Company Ltd. v. Punjab Labour Appellate Tribunal and 2 others (1994 PLC 553) and WASA Employees Union through General Secretary and another v. Registrar, Trade Unions, Balochistan and another (2003 PLC 86).
4. Arguments have been heard and record perused.
5. In order to determine whether the petitioner / Board is entitled to claim exemption within the contemplation of the section 1(3)(h) of the Punjab Industrial Relations Act, 2010, said provision is reproduced below:- "1. Short title, extent, application and commencement.- ... ...
It shall apply to all persons employed in any establishment or industry, but shall not apply to any person employed:--
(a) ...
(b) ...
(c) ...
(d) ...
(e) ...
(f) ...
(g) ...
(h) In an establishment or institution providing education or emergency services excluding those run on commercial basis."
Petitioner is a Board of Intermediate & Secondary Education, a statutory body constituted under section 3 of the Punjab Board of Intermediate & Secondary Education Act (XIII), 1976. Under section 11 of the Act, 1976, Minister for Education, Punjab and, when there is no Minister for Education, Government is the Controlling Authority of the Board. The powers of the Board are given in section 10 of the Act (XIII) of 1976 which is also reproduced below for ready reference:- "10. Powers of a board.---(1) Subject to the provisions of this Act a Board shall have power to organize, regulate, develop and control Intermediate Education and secondary Education.
(2) In particular and without prejudice to the generality of the powers conferred by the preceding subsection a Board shall have the power;
(i) to hold and conduct all examinations pertaining to Intermediate education, Secondary education, Pakistani and Classical language and such other examinations as may be determined by Government.
(ii) To prescribe course of study for its examinations;
(iii) to lay down conditions for recognition of institutions.
(iv) To accord, refuse or withdraw recognition, wholly or partly;
(a) in the case of schools maintained by the Govt. Of Pakistan after considering inspection reports from the officer on special duty, Ministry of Education Government of Pakistan or any other authority appointed for the purpose by the said Ministry;
(c) in the case of other schools, after considering inspection reports from the director of education concerned and
(c) in the case of Intermediate colleges and institutions preparing candidates for languages examinations, after considering reports from an Inspection Committee appointed by a Board in this behalf
(v) to inspect and arrange for inspection of recognized institutions and call for inspection reports in respect of such institutions other than the institutions run by the Govt. of Pakistan;
(vi) to lay down conditions for admission to its examination to determine the eligibility of candidates and to admit them to such examination;
(vii) to grant certificates and diplomas to persons who have passed its examinations and to withdraw such certificates and diplomas;
(viii) to fix, demand and receive such fees as may be prescribed;
(ix) to supervise the residence, health and discipline of the students of recognized institutions with a view to promoting their general welfare;
(x) to institute and award scholarships, medals and prizes in the prescribed manner;
(xi) to organize and promote extra-mural activities in and for recognized institutions;
(xii) to hold, control and administer its property and fund;
(xiii) to enter into and carry out contract in exercise of its powers and in the performance of its duties under this Act and the regulations;
(xiv) to pass its annual budget;
(xv) to transfer any movable and immovable property belonging to it;
(xvi) to hold and manage endowments;
(xvii) to regulate and decide all administrative matters including the creation and abolition of posts under the Board: Provided that a post carrying an initial pay of Rs.1,000 or more per mensem shall not be created without the prior approval of the Controlling Authority; (xviii) to appoint such officers and staff as may consider necessary for the performance of its functions and define their duties and conditions of service;
(xix) to make provision for buildings, premises, furniture, apparatus, books and other means required for carrying out the purposes of this Act;
(xx) to sanction or incur such expenditure as may be necessary for carrying out the purpose of this Act and
(xxi) to do all other acts necessary for carrying out the purposes of this Act.
(3) a Board may delegate any of its powers to its Chairman or any officer of the Board or to a Committee or sub-Committee appointed by it as it may deem fit."
6. Perusal of section 10 of the Act No. XIII of 1976 shows that the Board is primarily under a statutory duty to organize, regulate, develop and control the Intermediate Education and Secondary Education, as well as to hold and conduct all examinations pertaining to Intermediate & Secondary Education as may be determined by the Government in the light of the Act No. XIII of 1976. In the case of Commissioner of Income Tax and Wealth Tax, Rawalpindi Zone and another v. Board of Intermediate and Secondary Education, Rawalpindi through Secretary and another (2010 PTD 1366) learned Division Bench of this Court, while discussing as to whether an educational board constituted under the provisions of Act No. XIII of 1976 is an educational institution established solely for educational purposes and not for the purpose of profit, has observed as under: "8. The necessary function of respondent-Board is thus to organize, regulate, develop and control intermediate and secondary education. The process of education necessarily includes the granting of educational certificates which are commonly known as educational degrees. No education is complete unless its completion is formally authenticated by a University or Educational Board established for that purpose. As provided in section 10(1) of the Act, 1976 the Educational Board constituted under the said Act is the only institution which organize, regulates, develops and controls intermediate education and secondary education. Thus respondent No.1/Board falls within the definition of educational institution as envisaged in the exemption clauses of the Income Tax Ordinances referred to above. It will be advantageous to cite AIR 1968 SC 662 wherein the term educational institution has been elaborated in the following words:-- "There is a good deal in common between educational institutions which are not universities and those which are universities. Both teach students and both have teachers for the purpose. But what distinguishes a university from any other educational institutions is that a university grants degrees of its own while other educational institutions cannot. It is this granting of degrees by a university which distinguishes it from the ordinary run of educational institutions." The term "educational institution" had been defined in Concise Oxford English Dictionary in the following words:-- "The process of educating or being educated, the theory and practice of teaching; information about or training in a particular subject."
Similarly the term "educational institution" has been defined in Bank Law Dictionary in the following way in its Fifth Edition at page 461:-- "A school, seminary, college, university or other educational establishment, not necessarily a chartered institution. As used in a zoning ordinance, the term may include not only buildings, but also all grounds necessary for the accomplishment of the full scope of educational instructions, including those things essential to mental, moral and physical development."
The learned Single Judge of this Court while describing the functions of the Board in the impugned judgment has founded following valid reasons for holding the respondent-Board to be an institution engaged in educational activities:-- Upon a reading of the said provisions the Act of 1976 it is but apparent that the petitioners have been constituted by the Federal and the Provincial Government respectively for the sole purpose of organizing, regulating, developing and controlling Intermediate education and secondary education in the Islamabad Capital Territory and the Rawalpindi Division respectively.
Now as already stated by me above, the said Income Tax Ordinance exempts any income of a university or an educational institution established solely for educational purposes and not for purposes of profits. I have examined the University of the Punjab Act, 1973 and the Quaid-i-Azam University (erstwhile university of Islamabad) Act, 1973. I find that section 3 of the said two Acts are almost in paramateria. Under the said provisions of the said two Acts, the Universities reconstituted respectively at Lahore and at Islamabad, under section 4 of the said Acts, shall have the powers, inter alia, to provide for instruction in such branches of learning as the University may deem fit and to make provision for research and for the advancement and dissemination of knowledge in such manner as the University may determine, to prescribe courses of studies to be conducted by it and the Colleges to hold examinations and to award and confer degrees, Diplomas, certifications and other academic distinctions to and on persons who have been admitted to and have passed its examinations under prescribed conditions."
It will be thus seen that one of the primary power functions of the said universities is to hold examinations in the manner prescribed and as a result to confer the said awards upon successful candidates."
11. The above quoted observations of the learned Single Judge in the impugned judgment correctly interpret the term educational institutions as embodied and incorporated in Clause 86 of Part-I of Second Schedule of Income Tax Ordinance, 1979. The Education Board respondent No.1 is thus fully covered by the exemption Clause 86 referred to above of the Income Tax Ordinance of 1979 and is not liable to tax deduction as being claimed by the appellants."
The argument of learned counsel for respondent No. 2 that the petitioner-Board is earning huge profit, thus, it is a commercial organization, is misconceived. The establishment as a whole has to be looked at to find out its object and any part of it which is incidental, ancillary or adjunct, cannot determine its character. It is now well established that the main object of petitioner-Board is to regulate education and render other services in connection with education, thus, in such circumstances, even if it is earning profit, does not make it a commercial organization within the contemplation of the Punjab Industrial Relations Act, 2010. The character of the duties performed by the petitioner-Board cannot be termed as those of an industrial because no capital and labour is involved in the Board's functions, therefore, neither the petitioner is an industry nor its employees are workers within the meaning of PIRA. Therefore, it can be held without hesitation that the petitioner-Board is not been run on commercial basis and is fully covered by the provisions of section 1(3)(h) of the Punjab Industrial Relations Act, 2010, and is entitled to exemption within the contemplation of the aforesaid provision of law. In this regard, reliance is also placed on Employees' Union, Jamia, Karachi v. Registrar of Trade Unions, Sind and 2 others (1981 PLC 403), Board of Intermediate and Secondary Education, Gujranwala through Chairman v. Registrar of Trade Unions, Gujranwala and another (1993 PLC 475), Secretary, Federal Board of Intermediate & Secondary Education, Islamabad v. Secretary, Revenue Division, Islamabad (2002 PTD 2816), Messrs Board of Intermediate and Secondary Education, Bannu v. Secretary, Revenue Division, Islamabad (2003 PTD 9) and Federal Board of Intermediate & Secondary Education, Islamabad through Secretary v. Federation of Pakistan through Secretary, and 6 others (2005 PTD 2082).
7. The Governor of Punjab vide notification No.SO (Board) 1 26/91-3 declared the services of employees of the petitioner-Board as essential service under section 7(3) of the Punjab Essential Service (Maintenance) Act, 1958. In spite of the protection under the Act of 1958, petitioner-Board's organization, which is mainly concerned with the regulation of educational system in the territory assigned to the Board, whose working is purely object oriented and under no stretch of imagination can be held as commercial or industrial in nature, the formation of a Trade Union and its registration by respondent No. 1 / Registrar appears to be based on mala fide and done with a view to misuse the provisions of PIRA, and to defeat the provisions of the Punjab Board of Intermediate & Secondary Education Act, 1976, and the provisions of Efficiency & Discipline Rules. The functions which are being performed by the Board, are not covered by the provisions of PIRA, and therefore, the action of respondent No. 1 in registering respondent No.2 as a Trade Union, is entirely coram non-judice and without jurisdiction.
8. As per contention of learned counsel for respondent No.2, instant writ petition is not maintainable under the law because petitioner has alternate remedy in the form of filing an appeal under section 42 of the PIRA, which he has failed to avail. It would be beneficial to reproduce the provisions of section 42 of PIRA, for ready reference:- "42. Application to Labour Court. Any collective bargaining agent of any employer may apply to the Labour Court for the redressal of any grievance or enforcement of any right guaranteed or secured to it or him by or under any law or any award or settlement.
Perusal of the said provision of law reveals that it does not provide any remedy in respect of registration of Trade Union. However, section 13 of the PIRA provides a remedy to agitate the registration alone, but it is confined to the Trade Unions only.
9. As already observed, petitioner-Board is exempted from the application of the provisions of PIRA, and impugned proceedings conducted by the respondent No.1 are absolutely illegal, without lawful authority, ultra vires, and coram non-judice in the eye of law, therefore, this Court has ample jurisdiction to interfere in such circumstances. Reference in this regard can be made to Muhammad Hanif Khan v. Pakistan and 2 others (1982 CLC 1396) and Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd (2007 SCMR 1357). The argument as to maintainability of the writ petition is, thus, repelled.
10. Resultantly, this writ petition is allowed and the registration of "Employees Union of Board of Intermediate & Secondary Education, Lahore" as a Trade Union by respondent No. 1 is declared to be without lawful authority and of no legal effect. No order as to costs.