1. MD. NURUL ISLAM KHAN (CHAIRMAN).-This is alt applica--tion under section 8(3) of the Industrial Relations Ordinance, 1969 (hereinafter referred to as the I. R. O.). This application has been made in the form of an appeal by the first party on their applica--tion for registration of a Trade Union which has been refused by the Registrar of Trade Unions, Government of East Pakistan.
2. The case of the appellant first party is that they formed a Trade Union of all Class III and Class III employees engaged by the Directorate of East Pakistan. Fire Service, 5/1, Simpson Road, Dacca-1, on 28-1-1970 and submitted an application in prescribed form with all prescribed particulars for registration of, the Trade Union to the respondent, on 24-2-1970. The applica--tion for registration was in accordance with the requirements of law and it was in order in all material respects.
3. Although statutory period of 60 days elapsed since the date of receipt of the application, the respondent unnecessarily delayed registration and the issuance of the Certificate under section 9 of the I. R. O. Hence this appeal for directing the respondent to issue certificate of registration to the first party petitioner.
4. The Registrar of Trade Unions sent a letter in which it was stated that the Union is an association of Fire Service personnel employed under the Directorate of Fire Service of the Government of East Pakistan and as such, they may be termed as persons employed in the administration of the State.
5. In that view it was held that the Fire Service men were trot entitled to form Trade Union under section 1(3) of the I. R. O. Hence the registration was refused.
6. Point for determination in the present case is whether the party petitioner is entitled to get registration.
7. FINDINGS AND DLCISION It has been earnestly argued in this case by the learned counsel of the first party that in the schedule to the I. R. O. it appears that the Fire Services has been included as the Public Utility service as defined in section 2(xx). It was further argues that the definition of `industry' as given in section 2 of the I. R. O. remained unchanged throughout the entire series of Labour Acts enacted since partition. It was further argued that section 3 did not divest the Fire Service men of their right to form Trade Union since this right has been given to them by the definition of `industry' as given in section 2(xx), schedule to the I. R. O. and by section 33 of the I. R. O. which made a special provision --for Public Utility services. The schedule is quite clear. It includes Fire Fighting service in item No. 4.
8. It has been pleaded that in West Pakistan Fire Fighting services is being administered by the Municipalities and it is quite possible that other private agencies are competent to have their own Fire Fighting service and in lieu of such service they might take price from others. It has been argued by the learned counsel for the first party that persons employed m the administration of the State is quite different from a person who is termed as a Government servant. All persons employed in the Administration of the State may be Government servants, but all Government servants may not be called persons employed in the Administration of the State since Government by broadening its jurisdiction may extend its functions to different other agencies where private enterprise is now prevalent. It is submitted that Administration of the State would mean those functions which are the inalienable function on the State which cannot be performed by any private agencies. But in a modern State the Government by expanding its activities performs such public utility functions as the Hospitals and Ambulance services. Fire Fighting services, Postal and Telephone, services, Railways and Airways, Public Conservancy, Sanitation. etc., which as well can be performed by private bodies and which are actually being performed by private agencies is different; countries and also by other private bodies in Pakistan. The superior policy decision in the State ate such functions which cannot be performed by any other agency than the Government administration and people employed in the discharge of such inalienable functions of the State may be called persons employed in the Administration of the State. So those functions which can very well be performed by the private agencies in exchange of some price must come within the broad compass of `industries' be they performed by the. Government or by the private agencies.
9. This is an argument which is easily understood and cannot but be accepted, and I see no reason why people performing Fire Fighting services cannot be termed to be engaged in industries to which the provisions of the I. R. O. extend. If the Fire Fighting services have been included in the schedule of Public Utility services in the I. R. O. and if a special provision has been made in the I. R. O. that is, in section 33 to cover the strike, etc., of such services, there is no reason why the people engaged in the Fire Fighting services which is a field service under the Directorate of Fire Services of East Pakistan cannot be allowed to form their Trade Union. By all definitions of Class III and Class IV employees of the Directorate of Fire Services are workmen as they work in the field by bodily labour.
10. They are not officers of the Government and they are not engaged in the decision-making matters of the State and hence their function which could very well be performed by private bodies cannot be termed to be anything connected with the Administration of the State. Law is not supposed to make any discrimination between the people of the same service in the same State. If the Fire Fighting service in West Pakistan has been treated as industry not connected with the Administration of the State and if the Fire Service is being managed by private bodies in West Pakistan, I see no reason why the same facilities under the same Ordinance should not be extended to people working in the same service in East Pakistan. The more fact that Government is engaged in Fire Service business is no reason why the right conferred by the State Law should be snatched away from the workmen engaged in the Fire Service in East Pakistan.
11. For all these reasons stated above, the workmen engaged in the Fire Service of East Pakistan should be treated as workmen engaged in industry in the branch of Public Utility service. In this connection some important rulings have been quoted such as the one reported in 1968 L L C 319.
12. The observation of the learned Chairman given in the said ruling is as follows:- "Industrial Disputes Ordinance (LVI of 1959)----- ---- S. 2(g).--Presence of profit motive is not essential for bringing an undertaking within the definition of 'industry'. The character of activity involved in running a Hospital brings the institution of the hospital within the ambit of 'industry'-It makes no diffe--rence if the Hospital is run by the Government---It is the character of activity which decided the question whether the activity in question attracts the provisions of section 2(g); who conducts the activity and whether it is conducted for profit or not, do not make a material difference.
13. "Such an activity generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs-It must be organised or arranged in a manner in which trade or business is generally organised or arranged--It must not be casual not roust it be for oneself nor for pleasure-These are some of the features which are distinc--tive of activities to which section 2(g) applies-Judged by this test then would be no difficulty in holding that the State is carrying on an undertaking when it runs the Hospital in question-Held that Sir Ganga Ram Hospital, Lahore was an 'industry' covered by the ordinance."
14. Further, in the, ruling reported in 1969 PLC 529 Mr. Inamullah Khan,' Appellate, Tribunal in Muhammad Umar Khyal v. The Vice-Chancellor, University of the Punjab, Lahore case has also held as follows:- "An industry need not be necessarily for profit making. It can be an undertaking like charitable hospital or a calling of employers like an Automobile Association. The object for which an industry or business is run, would make no difference-so far as the definition of 'Industry' as given in the Ordinance, is concerned. If it is an 'Industry', the object for which fit is run or the individual who may be running it, would make no difference so far as the Industrial Disputes Ordinance is concerned"
15. These rulings would silence the so-called argument that Fire Fighting service in Fast Pakistan as managed by the Government is not a profit-making industry and that there is no quid pro quo involved in it. If the industry falls within the definition as given in the. different Labour Acts since 1947 that is, the Industrial Disputes Act, 1947, Industrial Disputes Ordinance, 1959; East Pakistan Labour Disputes Act, 1965 and the I. R. O., 1969, this matter of making would not be at all a concern in determining the nature of a particular calling.
16. For all these reasons I find that the first party Trade Union should be recognized as a Trade Union under the provisions of the I. R. O., 1969 as these persons forming the Trade Union are workers and as they are entitled to form a Trade Union under the provision sanctioned by the I. R. O., and that they could legitimately form a Trade Union for registration by the Registrar of Trade Unions. The Registrar of Trade Unions on the other hand, has failed to comply with the rightful provision of the Ordinance in not responding to the asking of the petitioner first party and hence the case of the first party is further strengthened The Registrar, if any, should have pointed out the defects within the limited period as provided in the statute and-by non-compliance of the provision of the Ordinance he has, therefore, givers a go-by to the case of the respondent.
17. Now, therefore, the appeal succeeds: It is, therefore, ordered that the appeal is allowed on content and the respondent be directed to register the first party Trade Union within 30 (thiry) days of passing this order by allowing the first party to rectify the mistakes, if any, Within the said period of 30 days, in the due course of business.
18. I have consulted the written opinion of the Members to arriving at this decision.