These eight appeals have been preferred against the National Book Foundation, hereinafter for the sake of brevity referred to as the Found--ation, by the National Book Foundation Employees' Union, which is the C.B A. For the Foundation's establishment at Karachi, and seven of its employees respectively. Appeal No. KAR-273 of 1982 arises out of an application under section 32 (1-A), I.R O , filed by the Union for adjudication on its charter of demands, which application has been dismissed by the learned First Labour Court by its detailed order, dated 27-4-1982, while the remaining seven appeals have been filed by individual employees whose grievance petitions against their dismissal from the service of the. Foundation have been rejected by the learned Labour Court by separate but substantially identical orders on the basis of its main order, dated 27-4-1982, in which it has held that the Foundation is not a "industry" as defined in the I.R.O., and hence the said Ordinance is not applicable to the Foundation or its employees.
2. All the above eight petitions originally came up for hearing before the Second Labour Court . A preliminary objection was raised against their maintainability on the ground that the Foundation was in the nature of an educational institution and hence the provisions of the I.R.O. Were not applicable to it or its employees. This objection of the Foundation,, however, was rejected by the learned Labour Court by its order, dated 6-3-1979. The validity of the said order was challenged in Constitutional Petition No. 28 of 1979. The learned Single Judge of the High Court, who heard the Constitutional Petition, did not agree with the view taken by the learned Second Labour Court and set aside its order, holding that the Foundation is not an "industry" as defined in the I.R.O., and accordingly the various petitions filed by the appellants under section 32 (1-A), and (25-A) I.R.O., were not maintainable. A High Court appeal was preferred against the said order of the learned Single Judge in which, by consent the following order was passed :- "In view of the aforesaid we set aside the judgment of the learned Single Judge and the order of the Sind Labour Court No. 11, Karachi dated 6-3-1979. The result is that the proceedings in which the last mentioned order was passed shall be deemed to be pending and shall be tried again from the stage immediately before passing of the order dated 6-3-1979, after giving opportunity to the parties to lead additional evidence if any on the question as to whether the National Book Foundation is an industry or not. The matter shall then be decided according to law. There will, however be no order as to costs. "
3. On remand of the matters to the learned Labour Court the evidence of Shaukat Ali, the General Secretary of the Union, was recorded on behalf of the appellants, while the evidence of Muhammad Isa Shaikh, Deputy Director incharge of the Karachi Branch of the Foundation, was led on behalf of the respondents. The latter produced voluminous documentary evidence in regard to the constitution and functions of the Foundation, its various schemes, its sources of income, financial liabilities, etc., in support of the contentions that the Foundation was being run under the control of and was being substantially financed by the Government, that it was in fact - an educational institution and that it was not engaged in the production, distribution or consumption of wealth or the provision of material services with a view to gain profit. The learned Labour Court , mainly relying on the observations of the learned Single Judge in Constitutional Petition No. 28 of 1979, has held that the Foundation is not an "industry" as defined in the I R.O., and hence the Labour Laws are not applicable to it. On this view of the matter it has dismissed all the eight petitions of the appellants.
4. I have heard Mr. M. L. Shahani and Mr. S. P. Lodhi, who appeared for the appellants, and Mr. S. M.
Yaqub, who represented the respondent Foundation. Mr. Shahani assailed the decision of the learned Labour Court on the following two broad grounds :-
(a) That the scheme of the I.R O. Is to bring within its fold all classes of workers, as defined in the said Ordinance, and wherever it is intended to exclude any class of workers from the operation of the Ordinance special and clear provision in this behalf has been made in the application clause of the Ordinance ; and
(b) that the essential functions and operations of the Foundation are to print, publish and sell books to the public and hence it has all the elements and characteristics of a commercial enterprise and it thus would fall within the definition of "industry" as contained in the Ordinance.
5. Elaborating his arguments in support of his first contention, Mr. Shahani contended that the provisions of the I.R.O. Are applicable to all workers employed for hire or reward in any establishment or industry except the workers who have been specifically excluded from the pale of the Ordinance in subsection (3) of section. The learned counsel specifi--cally referred to the Industrial Relations (Amendment) Ordinance, 1979, and the Industrial Relations (Second Amendment) Ordinance, 1979, by which certain classes of workmen have been excluded from the appli--cation of the Ordinance, as providing clear indication of the legislative intent in a two-fold direction, firstly, that all employees falling within the definition of "workers" as contained in the I.R.O., are entitled to the protection and benefits of the said Ordinance, and secondly, that whenever it is considered that any class of workers be excluded from the operation of the said Ordinance, in the public interest or for any other valid reason, such class of workers is specifically mentioned in the excluding clauses of the Ordinance. The learned counsel contended that the fact that the Employees of the Foundation have not been specified in the excluding clauses of the Ordinance is a clear indication that the Ordinance is appli--cable to them.
6. In support of his second ground, Mr. Shahani referred to the functions of the Foundation as laid down in the National Book Foundation Act, 1972, and contended that its main functions are substantially similar to those of commercial enterprises and hence its workmen should be deemed to be employed in an "industry", the definition whereof in the I.R.O. Is very were and includes any business, trade, manufacture, calling, service, employment or occupation. The learned counsel sub--mitted that these words are of the widest amplitude and as they have not been defined in the I.R.O.; they should be given their ordinary dictionary meaning and no artificial limitation should be placed on their connotation as is sought to have been done by the learned Labour Court. The learned counsel further submitted that even if it be assumed that the functions of the Foundation do not involve any element of profit, this would not exclude the operations and undertakings of the Foundation from the definition of "industry" as contained in the I.R.O., as absence of profit motive or gainful objective is irrelevant. In support of his contentions Mr. Shahani relied upon the case from the Indian Jurisdiction reported as Bangolore Water Supply and Sewerage Board v. Rajappa ((1978)2 SCC213) and the cases reported as A. F. Ferguson & Co. v. Vth Labour Court (1974PLC187), Marie Adelarde Leparocy Centre Employees' Union v. Registrar of Trade Unions (1977 PLC 13), and Liaquat National Hospital v. Government of Sind (PLD 1977 Kar. 843). The learned counsel sought to distinguish the case of Employees' Union Jamia, Karachi v. Registrar, Trade Unions (1981 PLC 403,) on the ground that the Foundation is not an educational institution but a publishing and printing undertaking, notwithstanding its high sounding nomenclature. Mr. S.P. Lodhi, who appeared in the cases of the individual workers, supported the arguments of Mr. Shahani.
7. Mr. S. M. Yaqoob, the learned counsel for the Foundation, on the other hand, strongly supported the decision of the learned Labour Court and invited my attention to the various schemes which have been implemented and are under implementation by the Foundation and submit--ted that an examination of these schemes, most of which have been sponsored by the Ministry of Education, Government of Pakistan, and the other works of the Foundation indicate that the true functions of. The Foundation lie in the field of education which is not confined to teaching institutions. Mr. S. M. Yakub also referred to the very large list of books printed, published or imported by the Foundation and submitted that these books are either text books, which are taught in schools, colleges or universities, or books of great educative value on subjects like the spread of Islam in the Indo-Pakistan Sub-Continent, the struggle for and the establishment -of Pakistan, Quaid-e-Azam and the other, great freedom fighters for Pakistan.
8. Before examining the various contentions of the learned counsel/ representatives, I will briefly refer to the administrative set up, statutory functions and the scheme of the Foundation as well as its financial resources and position: The Foundation has been set up under the provisions of the National Book Foundation Act, 1972, with the Minister of Education, Government of Pakistan, as its Chairman. The functions of the Founda--tion, as laid down in the said Act, are as follows :-
(a) to receive any money or financial grants from the Federal Govern--ment, the Provincial Governments, Local bodies and any statutory or non-statutory corporation ;
(b) to collect, accept or otherwise receive from any person; body, association, institution or organization any subscription or donation made to the Foundation ;
(c) to undertake writing of books and to encourage writers to. Produce good books
(d) to undertake the translation of foreign and locally produced books into the national and regional languages of the country, and vice versa
(e) to arrange the original publication and reproduction of local books as well as those published abroad ;
(f) to import foreign books and to undertake the distribution of books among the educational institutions and the general public ;
(g) to encourage the writers and the book trade in general in the production of books and making them available to the students and the general public at moderate prices ;
(h) to provide technical know-how and financial assistance and to take other steps aimed at fostering interest in books and in reading ; and
(i) to initiate such other activities and programmes as may assist in the task of book development, book promotion, advancement of literacy and dissemination of knowledge by mean of the printed word."
9. The statement of Objects and Reasons of Act, which explains the underlying purpose for the establishment of the Foundation, reads as follows :- "The Education Policy 1972-80 envisages the establishment of a National Book Foundation with the object of making books available at moderate prices. The Foundation was to be assigned the task of writing, compiling translating, printing and publishing books, encouraging writers to produce good books, and initiating such activities and programmes as may assist in the advancement of literacy and dissemination of knowledge by means of the printed word.
Accordingly, the National Book Foundation Ordinance, 1972 (XXVI of 1972), was promulgated on the Fourth of July, 1972. The bill seeks to place the provisions of the said Ordinance on the statute book on a permanent basis."
(i) Scheme for the total production of foreign textbooks.
(ii) Scheme for the import of text books.
(i.e) Scheme for supply of supplementary reading material to primary schools.
(iv) Scheme of Braille Press (on the imported press whereof the Government waived customs and import duties).
(v) Scheme of the National Book Foundation for the printing/produc--tion and import of foreign books and printing, editing and compila--tion of local text books and supplementary reading material.
10. From the catalogue of printed books which has been filed by the Foundation in the Labour Court it appears that up-to-date 407 books in English, the greater majority of which are text books used in Universities, Colleges and Schools, and 177 books in Urdu (including books for children) have been produced, printed and published by the Foundation. Reference may also be made to the printing policy of the Foundation, which is to make available books to the persons requiring them at subsidised rates. In other words the books acquired, produced and printed by the Foundation are deliberately sold at a lower price than the cost of acquisition, production and printing of such books, in accordance with its declared policy and the purposes for which the Foundation has been set up which is to make stan--dard books available to students and the public at cheap rates. The result is that there is constant loss in the working of the Foundation which is partly made good by grants and subsidies from the Government. The audited balance sheet of the Foundation for the year ending 30th June, 1979, shows that during the year 1978, the net loss incurred by the Foundation was Rs. 28,05,305 which increased to Rs. 47,21,200 at the end of the financial year 1979.
These losses were incurred mainly by reason of sale of books by the Foundation at lower rates than the cost of their import, production or printing, as already indicated.
11. I will now revert to the contentions of the learned counsel/repre--sentatives of the parties on the main issue which falls to be determined in this case, namely, whether the Foundation can be deemed to be an "industry" and the provisions of the I. R. O. Are applicable to it and its employees.
The three key words, the understanding of the connotation and import whereof will be helpful in resolving this issue, are "worker" or "workman", "establishment" and "industry". These three words have been defined in the I. R. O. Thus :- 'Worker' and 'workman' means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied ............."
'Establishment' means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry, and except in section 22 (EE), includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments. '
'Industry' means any business, trade, manufacture, calling, service-- employment or occupation."
12. It may also be useful to reproduce the original definition of ' industry." as contained in the I. R. O. It ran thus- "Industry" means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, occupation or avocation of work and includes ;
(a) Mines, quarries and other works for the extraction of minerals from the earth ;
(b) Industries in which articles are manufactured, altered, cleaned, repaired, ornamented, finished, adopted for sale, broken up or demolished, or in which materials are transformed ; including ship-- building and the generation, transformation, and transmission of electricity or motive power of any kind ;
(c) Construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock, pier, canal, inland waterway, road, tunnel, bridge, sewer, drain well, tele--graphic or telephonic installations, electrical undertakings, gas work, water work or other work of construction as well as the preparation for or laying the foundations of any such work or structure ;
(d) Transport of passengers or goods by road, rail, sea or inland waterway including the handling of goods at docks, quays, wharves or warehouses but excluding export by land."
13. It will be seen that the original definition of "industry" in the I. R. O. Is materially different from the present definition of "industry" in the I. R O., in that the original definition uses the much wider phrase means and includes and further it was at least in part based on the terminology used in the definition of "industry" in the Indian Industrial Disputes Act, 1947. It is important to bear this point in view as it partly explains the difference in the views of our Courts and the Indian Supreme Court as to what callings, professions and undertakings can be brought within the fold of "industry". The works and undertakings, which were specifically included in the original definition of "industry" in the I. R. O., all relate to industry as understood in common parlance and are meant to provide material services plus having a profit motive. The present defini--tion of "industry" in the 1. R. O., although couched in words of the widest amplitude does not, in my respectful view lead us to the assumption that there has been a complete departure from the pass and that every type of service, employment or calling, whether it provides material services or not or it is an undertaking with a profit motive or for purposes of gainful employment, is deemed to be an "industry" for the purposes of the I. R. O. Tabligue is a form of service. It can hardly be said that an organization or trust which engages in Tabligues and employs persons in such a noble undertaking can be said to be engaged in industry. As such, I am inclined to the view that the term "industry", despite the were definition which has been given to it in the I. R. O., cannot be disassociated from the providing of material services, as distinct from spiritual services or services which are meant to uplift the mind and broaden out vision. The preponderance of authorities of our own Courts appears to support this line of thinking. However, before referring to those authorities, I would 'refer to the authorities cited by Mr. Shahani in support of his contention that the Foundation is an "industry" for the purposes of the I. R: O.
14. The main authority cited by Mr. Shahani is decision of the Indian Supreme Court in the case of Banglore Water Supply and Sewerage Board v. Rajappa. In that case, the Indian Supreme Court overruled its earlier decision in the cases reported as Safdar Jang Hospital v. Kuldip Singh Sethi ((1970) 1 SC C735), National Union of Commercial Employees v. M. R. Meher (AIR 1962 SC 1080); Delhi University v. Ram Nath (AIR 1963 SC 1873) and Dhanrajgrji Hospital v. Work--man ((1975) 4 SC C 621) and followed the view taken by it in the case of State of Bombay v. Hospital Mazdoor Sabha (AIR1960SC610). In the case first mentioned, the Indian Supreme Court held that the term "industry" as defined in section 2 (j) of the Indian Industrial Disputes Act, 1947, has a were import and further explained its connotation as follows :- "(a) Where (i) systematic activity, (ii) organized by co-operation* between employer and employee (the direct and substantial element is commercial) (i.e) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss a g., making, on a large scale prasad or food), prima facie, there is `industry' in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not ceases to be one because of philanthropy animating the undertaking."
It further. Held that education institutions are deemed to be -"industry" under the law notwithstanding the fact that teachers are not workers and cannot avail themselves of the benefits of the Industrial Disputes Act and even charitable undertakings which have no profit motives at all would be `industry' for the purposes of the law if persons are employed for hire and reward in such undertakings. There was thus a complete shift by the Indian Supreme Court from its earlier view that educational institutions, hospitals- and clubs are not `industry'. The Indian rulinges, however, are not very useful for our purposes as the definition of "industry" in the Indian Law is somewhat different from the definition of "industry" as con--tained in the I. R. O. Moreover in interpreting any provision of a law or even the meaning of any particular word used in a law, the said provision or word cannot be taken in isolation but the entire statute has to be considered to find out its true meaning, purpose and direction. - The I. R. O. Has primarily been enacted for bringing about industrial peace . And hence the proper application of the law lies in the field of industrial units as distinct from undertakings meant for the upliftment of the mind and soul, such as religious institutions, educational institutions and purely charitable institutions.
15. It may further be pointed out that not only one of the learned Judges of the Indian Supreme Court partially dissented from the view taken by the majority and was of the opinion that despite the width of the definition of "industry" in section 2 (j), it could not have been the. Intention of the Legislature that hospitals run on charitable basis and or as a part of the function of the Government or local bodies like municipalities, and educational and research institutions whether run by private entities or by government, and liberal and learned professions like doctors, lawyers etc., the pursuit of which is dependent upon the individual's own education, intellectual attainments and special expertise, should fall within the pale of the definition. According to him the definition is limited to those activities systematically. Or habitually undertaken on commercial lines by private entrepreneurs with the co-operation of employees for the production or distribution of goods or for rendering material services to the community at large or a part of such community.
16. The case of A. F. Ferguson & Co., which was relied upon by the learned counsel for the appellants, is equally unfruitful for the appellants as the decision of the Division Bench was limited to the finding that the definition of "industry" in the I. R. O. Was were enough to' include professions like chartered accountants and lawyers and the Division Bench was not called upon to decide whether institution like the Foundation would fall within the definition of `industry' as contained in the I. R. O. It may further be pointed out that even the Division Bench which decided the said case was conscious of the fact that though the definition of `industry' was very were, a line had to be drawn. In this behalf Dorab Patel, J., who delivered the judgment on behalf of the Division Bench, observed as follows :- "However, I would pause here to point out that Mr. Brohi also relied on the observations in para 12 of this judgment in which the learned Judges observed that, although the definition of an industry was very were, its meaning had to be restricted because a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning of services and all callings would come within the purview of the definition; even services rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot. Be suggested that in its were sweep the word service is intended to include service howsoever rendered in whatever capacity and for whatever reason. I respectfully agree with this view that a line has to be drawn some--where in every definition, but the question where that line has to be drawn must depend on the definition and the statute in which the definition occurs. That is important, because the judgments cited are on a different definition in a different statute."
17. The third authority relied upon by Mr. Shahani. Is the case of Marie Adelaide Leprosy Centre, in which a learned Single Judge of the Karachi High Court, mainly relying upon the decision from the Indian Jurisdiction in the case of State of Bombay and another v. The Hospital Mazdoor Sabha, held that the Marie Adelaide Leprosy Centre was an 'industry" for the purposes of the I. R. O. That decision, however, fails to take notice of the contrary decision given by the Lahore High Court.
Which I will presently notice.
18. The last case cited by Mr. Shahani in support of his contention is a decision by a Division Bench of the Karachi High Court of which I was a member in' the case of Llaquat National Hospital. That case, however, falls to be considered under the Workers' Children (Education) Ordinance. The said Ordinance provides for the levy of an Educational Cess on every employer of an establishment in which the number of workers employed at any time during a year is 20 or more. The decision in that case, however, turned on the point that it was a taxing statute which has to be construed strictly and that further the definition of "worker" given in the Ordinance appeared to clarify that element of profit or gain was not an essential ingredient of establishments on which the Education Cess could be levied.
19. AS against the authorities sought to be relied upon by Mr. Shahani, there are a number of authorities, both of the Lahore High Court as well as of the Karachi High Court for the view that the term "industry" as used in the I. R. O., has to be given a restricted meaning and does not include within its pale "Educational and Research Institutions.
20. In the case reported as K. G. Old v. Presiding Officer, Punjab Labour Court (PLD 1976 Lah. 1097), Shafiur Rahman, J., after reviewing the relevant case-law both from the Indian and our Courts, held that restricted meaning should be given to the term "industry" as used in the I.R.O. And observed as follows :- "'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 con--ventional meaning.
In the context of industrial and labour laws, these expressions apply to any enterprise which is organized and is systematic `depending substantially, if not entirely, on the corpora--tion between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or pro--visions of material services. The enterprise as a whole has to be looked at to find out its raison detre, and any part of it which is inci--dental, ancillary or an adjunct cannot determine the character of the whole.
21. In the latter case of Pakistan Central Cotton Committee. Karachi v. Presiding Officer, Punjab Labour Court No. 111 (Writ Petition No. 74/76) Nasim Hasan Shah, J., relying upon the decision in the case of K G. Old, held that the Pakistan Central Cotton Committee had been set up to under take agricultural and technological research and _ this was akin. To functions carried on by an Educational Institution and -that further--more it was a non-profit making organization and consequently .Ix was not an 'industry".. The learned Judge expressed himself on these points as follows:=- "The function of the Pakistan Central Cotton Committee, petitioner, is to undertake agricultural and technological research. This is akin to a functions carried on by an Educational Institution. The Government of Pakistan is to be advised by the Pakistan Central Cotton Committee (petitioner) so that cotton growing is conducted in a manner which is beneficial to the country. Unless there is a direct nexus between mills and the Pakistan Central Cotton Committee, its employees cannot be treated as "workmen". In the present situation, the mills are not advised directly and, therefore, there is no nexus between the two. In fact there is a comprehensive programme going on in the Research Institute in which people from outside countries, especially R.C.D. Countries participate and ace taking training.' In short, respondent No. 2 is a Research Institu--tion. It is a non-profit making organization and the work done by it cannot be assimilated With what maybe described as an industrial process. The enterprise looked as a whole does not indicate that it can be considered as "industry'". In this view of the matter the certifica--tion accorded to respondent No. 2 as C.B.A. By the Registrar of Trade Unions is also of no avail".
22. In the latest case Employees' Union Jamia Karachi v. Registrar, Trade Unions a Division Bench of.
The Karachi High Court after noticing the decisions of the Indian and Pakistani Courts on the subject, including the cases of Bonglor Water & Sewerage Board and K: G. Old. Held that the Karachi University , being an Educational Institution, was not an industry and construed the word industry and service as given in the I. R. O. As follows :- The word industry and service are capable of various interpretations which may differ according to one's approach, notice, socio-economic consideration and ideology. But as these words find place in a statute called Industrial. Relations Ordinance which primarily relates to material and economic activity they have to be interpreted in the same colour and scheme of things. Therefore, only that service which is material in nature and is the outcome of an organized economic activity in continuity with the co-operation of the workers and management will be treated as industry.
23. The services which the Foundation is making to the students and the public at large cannot be considered to be material services but services akin to education. The term education cannot be restricted to formal teaching in class rooms in schools, colleges, universities and other institutions but would also extend to undertakings which provide the material and books for self-education, provided that such services are not given with a profit motive or as a business proposition. In Ballentine's Law Dictionary, IIIrd Edition, the word Education has been defined as the cultivation of the mind, the impovement of morll"1 and religious natures, and the development of physical faculties.
24. In . Words and Phrases, Volume 14, one of the definitions of education is given as Education is a broad and comprehensive term with a variable and indefinite meaning, and in its broadest significance, it comprehends the acquisition of all knowledge tending to develop and train the individual. Another definition given in the said Volume of the term is Education has been defined by the encyclopedias and diction--aries or acquisition of knowledge, mental and moral training cries as cultivation of the mind, feelings, and manners.
25. Looking to the purposes for which the Foundation has been set up, its activities and scheme and the manner in which it is being run, I am of opinion that it is akin to an educational organization and cannot be equated with organizations whose primary object involves material and economic activity or which provide service of a material nature. Would accordingly uphold the findings of the learned Labour Court and would dismiss all the 8 (eight) appeals.