1. HAIDER ALI PIRZADA, J.--The petitioners in this petition have impugned the order, dated 3rd July, 1985 passed by the respondent No. 1 in appeal arising out of a complaint entertained by Single member of respondent No. 1.
2. The facts leading to tie filing of the petition are that the petitioners are a statutory corporation established by the Federal Government under section 4 of the Employees Old-Age Benefits Act, 1976 (hereinafter called the said Act). The object of the said Act is to provide old age and invalidity benefits for persons employed in industrial, commercial and other institutions. It is the case of the petitioners that the legislation and establishment are in implementation of principles of policy under Chapter 2 of the Constitution making it the responsibility of each organ and Authority of the State and persons performing function of behalf on organ or Authority of the State to act in accordance with Constitutional principles relating to their function.
3. The petitioners filed an application for cancellation of registration of respondent No. 3 on the grounds that it is an institution wherein persons are employed in the administration of the State (2) the institution is not an industry within the meaning and contemplation of section 2(xiv) of the Industrial Relations Ordinance, 1969 (hereinafter called the said Ordinance). The respondent No. 3 was served. Parawise comments were filed by the respondent No. 3. After hearing the arguments the respondent No. 2 held that the said Ordinance is not applicable to the respondent No. 3 and had been illegally registered vide order, dated 13-12-1985. The respondent No. 2 also held that it is a fit case for cancellation of the registration of the respondent No. 3. The respondent No. 2 cancelled the registration of the respondent vide order, dated 17-12-1984 on the ground that it was registered in contravention of the provisions of the said Ordinance.
4. The respondent No. 3 being aggrieved by orders, dated 13-12-1984 and 17-12-1984 of the respondent No. 2 filed Appeal No. 12(3)i84 before the Full Bench of the respondent No. 1. The respondent No. I by its order, dated 3-7-1985, allowed the appeal and set aside the order 13-12-1984 for the reasons-given in the said order.
5. The petitioners above named, being aggrieved by the order, dated 3-7-1985 of the respondent No.1 have preferred this Constitution Petition.
6. In support of the above petition Mr. J.H. Rahmatoola the learned counsel for the petitioners has raised the following contentions:-
(1) Persons employed by the petitioners are persons employed in administration of the State to whom the Ordinance does not apply;
(2) Persons employed by the petitioners are persons employed by an establishment maintained for care of persons subject to infirmity of old-age and the Ordinance does not apply to them;
(3) Petitioners are not an industry;
(4) The impugned order is of Full Bench of not less than three members of commission and as such is an invalid order without jurisdiction and coram non judice.
7. On the other hand, Mr. Malik Muhammad Saeed, the learned counsel for the respondent No. 3 has submitted that the function of the petitioners is to recover contribution from employers of Industry and establishments in the prescribed manner and to make payments of old age pension, invalidity pension and other grants and benefits to eligible insured persons in the prescribed manner. The employees of the petitioners are not employed in the administration of the State. The activities of the petitioners and the job, duties rendered, performed by the employees of the petitioners are of the nature of clerical work and the provisions of the said Ordinance are applicable. The order of valid within the jurisdiction.
8. In order to appreciate the contentions of the learned counsel for the parties it is advantageous to reproduce the provisions of section 1(3) which reads as under:-
(3) it shall not apply to any person employed
(a) in the police or any of the Defence services of Pakistan or any services or installation connected with or incidental to the Armed Forces of Pakistan including an Ordinance Factory mentioned by the Federal Government; or
(b) in the administration of the State other than those employed as workmen.
9. The learned counsel for the petitioners has contended that the workers of the petitioners are excluded by virtue of section 1(3)(b) of the said Ordinance. The point for determination is as to whether the employees would be covered by the phrase "employed in the administration of State".
10. We are of the view that keeping in view the intention of the legislature to confer the benefit of labour laws on as many persons as would be covered by the definition of workman, the phrase employed in the administration of the State must be strictly construed.
11. According to the Concise Oxford Dictionary, 3rd Edition, the word "administration" means-- management (of business); Management of public affairs, Government the ministry, the Government: The word "administer" means--Manage (affairs) dispense (justice, sacrament, to); I tender (oath to); furnish, give (things to); apply (remedies to); act' as administrator.
12. In the case, Sind Road Transport Corporation and 2 others v. Staff Union and 2 others 1975 PLC 361 traced the history of the legislation in Pakistan on the subject of Trade Unions and the determination of industrial and Labour disputes: "The expression 'administration of the State' has been used in I.L.O. Convention No. 98, which concerns the application of the principle of the right to organise and to bargain collectively and which came into force on 18th July, 1951, and to which convention Pakistan is a signatory. Article 1 of this convention provides that 'workers shall enjoy adequate protection against act of anti-Union discrimination in respect of their employment Article 2 recites that 'Workers' and 'employers' organization shall enjoy adequate protection against any acts of interference by each other or each other's agents or members in their establishment, functioning or administration. Articles 3 requires that machinery appropriate to national conditions shall be established, for the purpose of ensuring respect for the right to' organise. Article 5 provides that the extent to which the guarantees provided for in the said convention are to apply to the armed forces and the police is to be determined by national laws and regulations. Article 6 excludes the application of the Convention to public servants' engaged in the administration of the State' but at the same time it provides that this is not to be construed as prejudicing their rights and status in any way. The convention also requires declarations to be made to the Director-General of I.L.O. Office by the countries ratifying the convention regarding the enforcement of the said Convention."
13. Again at page 369, para. 11, it has been held:- "The various definitions of 'administration' referred to above, coupled with the fact that the administration which we are required to consider is of the State inclines us to the view that the expression 'administration of the State' is to be interpreted in the limited and narrow sense of the practical Management and direction of the executive machinery or of the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government. If the Legislature had intended by this expression to include not only every Government servant, but also every employee of a statutory body performing functions on behalf of or as an agent of the Government as contended by Mr. Brohi, there was no reason to specifically exclude from the purview of the Ordinance, as has been done, persons employed in the police, the defence services and services or the installations connected with the armed forces, including Ordnance factories maintained by the Central Government. These persons would previously on the interpretation which Mr. Brohi invited us to give to the above expression, be included within that expression. The fact that a special exception has been made in respect of the above classes of persons would seem to suggest, firstly, that the Legislature was apparently of the view or at least thought that a possible view could be taken that classes of persons may not be included in the expression 'persons employed in the administration of the State' and secondly, so that the law may be in consonance with the two I.L.O. Conventions referred to above, which specifically exclude from their purview the Police and the Armed Forces. The reason for specifically excluding workmen in Railways, Posts, Telegraph and Telephone Departments, as we have been able to understand section 1(3) of the Ordinance, apparently was not so much the fact that they are included or deemed to be included in the expression persons employed in the administration of the State' as the historical fact that Unions in these Departments had been in existence since as very long time and the Legislature wanted to make it clear that workmen in these Departments were not to be excluded from the application or denied the benefits of the Ordinance."
14. In the case of Mechanical Engineer V.S.M.D. Sukkur and 4 others v. Andrew Gohar and 2 others PLD 1978 Kar. 503 Mr. S.A. Nusrat, J. (now Judge in the Supreme Court) it has been held that the expression "persons employed in the administration of the State" does not cover persons unconnected with the actual performance of administrative and executive duties of the State.
15. The next question for consideration is whether petitioners institution would be covered by the phrase "by an establishment, maintained for the treatment or care of sick, infirm, or mentally unfit persona".
16. According to the Concise Oxford Dictionary meaning (3rd Ed), the word "maintain" means--carry on keep up (war, contest, action of law, condition, position, attitude, relation, correspondence); cause (persons or Co.), to continue in (condition, possession of thing, & Co.); support (life one's state in life) by nourishment, expenditure & Co. Furnish (one-self, children) with means of subsistence, keep (Road Co.) in repair; backup (cause, party); assert as time (Opinion, statement, that). The word "care" means--Solicitude, anxiety; protection thing to be done or seem to (CC. Of State h Co.); that shall he may). Full cover on interest for an about: provide food, attendance, for (children, invalids a Co.).
17. Clause (f) of section 1(3) of the said Ordinance was inserted on' 29th September, 1979. It is pertinent to note that by clause (f) the petitioners institution has not been expressly excluded from the operation of the said Ordinance but establishments maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons have been excluded. There is no evidence that the petitioners institution has been established and is being maintained for the treatment or care of sick, infirm, destitute or mentally unfit persons. The contention of they learned counsel for the petitioners is that since the petitioners institution provides benefits to the sick and infirm persons or to old-age person& and, therefore, the institution is covered by the clause (f) and is excluded from the purview of the said Ordinance. We cannot accept this contention since in this institution treatment is not given to the sick and infirm persons, but old-age pensions, invalidity pension, widows' pensions; old-age grants and other benefits, out of contribution payable to the institution by every employer of an industry or establishment wherein ten or more persons are employed, we are of the view that the said institution is not covered by the new added clause (f) to section I of the said Ordinance. We are of the opinion that the reversioners of the said Ordinance would be applicable to the petitioner & institution.
18. The other important point for consideration is whether the petitioners institution is an industry. The word "industry" is defined in clause(xiv)of section 2 of the said Ordinance:- "(xiv) 'Industry' This term means any business, trade, manufacture, calling, service, employment or occupation. An industry need not be necessarily for profit making. It can be an undertaking like a charitable hospital. This very wide definition was incorporated by the Industrial Relations (Amendment) Ordinance, 1970.--- In order to prove the applicability of these Labour Laws Mr. Malik Muhammad Saeed, the learned counsel for the respondent No 3 has submitted that admittedly a Trade Union is functioning with the status of C.B.A. In the petitioners institution right from the very beginning and the workers of the institution are being dealt with under check of system as well, A number of settlements have also been arrived at between the management and C.B.A. His submission is that the institution is covered by the definition of an "industry". Accordingly the provisions of the said Ordinance are fully applicable to it.
19. Mr. Rehmatoola submits that the petitioners institution is a statutory corporation established by the Federal Government. It is not manufacturing institution. The facilities are to, lie provided to the insured persons and widows, in firm of old-age persons, invalidity pension widow pension and age grants and other payment and are on no profit or loss basis. As the word "industry" has been defined to mean any business, trade, manufacture, calling, service, employment or occupation.
20. The petitioners institution does not carry on any trade or business and does not work for gain.
21. Section 1(4) of the said Act provides that it applies to every industry or establishment wherein ten or more persons are employed Section 4 provides that all persons employed in an industry or establishment under a contract of service or apprenticeship shall be insured in the manner provided by or under the said Act. Section 4 provides that the Federal Government shall establish or nominate by notification an institution to be called the Employees Old-Age Benefits by Institution. Section 9 provides that on or from the first of July, 1976, contribution shall be payable every month by the employer to the institution in respect of every person in his insurable employment at the rate of five per cent of his wages in the prescribed manner. Section 17(1) provides that the institution shall have its own funds to be called the Employees Old-Age Benefits Fund anti may incur out of the fund such expenditure as may be necessary for the purpose of the Act. Subsection (2) of section 17 provided that all contributions paid under the Act and all other moneys received by or on behalf of the institution shall be paid into the Fund. Subsection (3) of section 17 lays down that the institution shall derive its revenues from the sources mentioned in clauses (a) to (d) thereof. Subsection (4) provides that the assets of the institution shall be utilised solely for the purposes of the said Act. Section 22 provides that an insured person shall be entitled to old-age allowance at the rate of seventy-five rupees per month provides that (a) he is over fifty-five years age, or in the case of a woman, fifty years; (b) he has retired from insurable employment; and (c) contributions in respect of him were payable for not less than fifteen years; provided that the old-age allowance shall be increased by five per cent per month for every additional year of insurable employment beyond the age specified in clause (a). Section 23 provides that an insured persons who sustains invalidity shall be entitled to an invalidity allowance at the rate of rupees seventy-five per month as provided by clauses (a) to (c) thereof.
22. The above narration of facts about the petitioners institution would show that it is not a business, trade or manufacture. It is on the other hand, a service as it provides to insured person in the shape of old-age allowance and/or invalidity allowance. It is an institution which collects and receives contributions, donations, bequests and all other payments through its employees.
23. The learned counsel for the petitioners has placed reliance on K. G. Old v. Presiding Officer PLD 1976 Lah. 1097 in which a similar point came up for consideration. The question which came up for by the term "Industry" as defined in section 2(xiv) of the I.R.O. Mr. Shafiur Rehman, J. (now Judge of Supreme Court) in an exhaustive and detailed Judgment after noting all the relevant case-law, observed: "33.--It is, therefore, clear that given their plain ordinary dictionary meaning words used to define Industry, words which have been always, and are even now, a part of the definition, viz, Business, Trade, Manufacture, Calling, Service, Occupation are of the widest amplitude and include in their sweep every conceivable human activity which is not casual, recreational or a past time. Literal construction certainly leads to that end and to no other. However, one accepted principle of interpretation already reproduced is that use in a statute, amending or otherwise, of a term which has received a judicial construction gives rise to the presumption that the term is used in that sense."
24. "53.--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 conventional 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 co-operation between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or provision of material services."
25. In F.A. Furguson & Co. v. Sind Labour Court and others PLD 1974 SC 98 a Division Bench while dismissing the Constitution petition, held that the profession of Chartered Accountant which was being conducted by A.F. Furguson constituted an Industry. The petitioner filed petition for special leave which was converted into appeal. The Hon'ble Supreme Court dismissed the appeal and held as under:- "We also observe that of the three points raised in this case before the learned Judges of the High Court, namely:-
(i) that the appellant-firm was not an industry within the meaning of the Ordinance;
(ii) that the respondent No. 2 had no locus standi to raise and maintain an industrial dispute as required under the Ordinance; and
(iii) that respondent No. 2 was not qualified as a collective bargaining agent.
26. The High Court only decided the first point definitive holding that the appellant-firm did constitute an industry within the meaning of the Ordinance."
27. "But this does not imply that we are in agreement with the view taken by it that the appellant- company constituted an 'industry'."
28. A Division Bench of this Court in the case of Employees Union, Jamia Karachi v. Registrar of Trade Unions, Sind and others 1981 PLC 403 held as follows:- "The words 'industry' and 'service' are capable of various interpretations which may differ according to ones approach, notions, socio-economic consideration and ideology. But as these words find place in 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, on that service which is material in nature and is the outcome of an organised economic activity in continuity with the co-operation of the worker and management will be treated as Industry."
29. We are in full agreement, with great respect, to the above observations reproduced above. As said above the petitioner's institution too is providing material services to the insured persons. We are of the view that the institution is an "industry" as defined in the Industrial Relations Ordinance. The respondent No. 1 thus acted lawfully and with jurisdiction in passing the impugned order.
30. Reverting to the last contention of the learned counsel for the petitioner that the respondent No. 1 was coram non judice for the reasons that the impugned order should have been passed by a minimum three members, and the same has been passed by only two members. The relevant provisions of the said Ordinance relating to the constitution of a Full Bench of the Commission, are given in Clause (a) of subsection (2) of section 22-B. It is also relevant to reproduce hereinbelow subsection (4) of section 22-B which reads as under:- "If any member of the Commission is absent from, or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or judgment or sentence may be passed in the absence of such member and no act, proceedings, decision, or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the constitution of the Commission of Bench.
31. He has placed reliance on the cases PLD 1971 SC 124, PLD 1971 SC 197, PLD 1949 P C 39, PLD 1973 SC 49, PLD 1973 SC 236, PLD 1972 SC 271 and PLJ 1981 Kar. 32, some of them are discussed below:-
(1) In Mansab Ali v. Amir and 3 others PLD 1971 SC 124 the respondents filed Constitution Petition and contended that the Commissioner had not given them an opportunity to show cause as to why the case pending against them before the Inquiry Magistrate be not referred to a Tribunal.
32. Their contention was accepted by the High Court. The appellant filed petition for leave to appeal before the Hon'ble Supreme Court. Leave to appeal was granted. The Hon'ble Supreme Court held as under:- "It is an elementary principle that if a mandatory condition for the exercise of jurisdiction by a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. Any order passed in continuation of these proceedings in appeal or revision equally suffer from illegality and are without jurisdiction.
33. The contention raised by the appellant in support of the appeal are thus devoid of force. The order passed by the Commissioner on 21st July, 1964, referring the question of guilt or innocence of the respondents to a Tribunal under section 3 of the Criminal Law (Amendment) Act being ab initio illegal the proceedings which followed that order were without lawful authority."
(2) In Chittaran Cotton Mills Ltd. v. Staff Union PLD 1971 SC 197 the Hon'ble Supreme Court held as follows:- "Where the Court is not properly constituted at all the proceedings must be held to be coram non judice and, therefore, non-existent in the eye of law."
(3) In Rashid Ahmed v. The State PLD 1972 SC 271. In this case sanction for prosecution was not obtained from the appropriate authority. In these circumstances Hon'ble Supreme Court held that: "If a mandatory condition for the exercise of a jurisdiction before a Court, tribunal or authority is not fulfilled, then the entire proceedings which follow become illegal and suffer from want of jurisdiction. "
(4) In the State v. Ziaur Rehman PLD 1973 SC 49 the Hon'ble Supreme Court held that "an act done mala fide is an act without jurisdiction".
(5) In Nawab Syed Raunaq Ali etc. v. Chief Settlement Commissioner and others PLD 1973 SC 236 the Hon'ble Supreme Court held:-- "It is also now well established that where an inferior tribunal or Court has acted wholly without jurisdiction or as Rubinstein puts it in his book on 'Jurisdiction and illegality' taken any action 'beyond the sphere allotted to the tribunal by law and, therefore, outside the area within which the law recognizes a privilege to err', then such action amounts to a 'usurpation of power unwarranted by law' and such an act is a nullity; that is to say, 'the result of a purported exercise of authority which has no legal effect whatsoever'. In such a case, it is well established that a superior Court is not bound to give effect to it, particularly where the appeal is to the latter's discretionary jurisdiction. The Courts would refuse to perpetuate, in such circumstances, something which would be patently unjust or unlawful. "
34. In the instant case as per note appended to the order shows that the appeal was heard by a Full Bench consisting of Dr. Ibrahim Mahmood, Mahmood Akhtar and Raja Iftikharul Khan but at the time of announcement of Order Raja Iftikharul Khan was not present because his tenure had expired. The Full Bench was properly constituted and its constitution was not void ab initio but one of its members was not available at the time of announcement of order. The above-cited cases are not applicable to the facts of this case. The law laid down in the case reported in PLJ 1981 Kar.
35. 32 is applicable to the facts of this case. The provision in regard to constitution of the Full Bench of the Commission is contained in section 22-B (2)(a) of the said Ordinance. Clause (a) would show that a Full Bench of the Commission which shall consist of not less than three members. Subsection
(4) would show that if any member of the Commission is absent or is otherwise unable to attend any sitting of the Commission or of a Bench consisting of more than one member of which he is a member, the proceedings of the Commission or Bench may continue, and the decision or award may be given or Judgment or sentence may be passed in the absence of such member and no act, proceedings, decision or award of the Commission or Bench shall be invalid or be called in question merely on the ground of such absence or of the existence of vacancy in or any defect in the constitution of the Commission or Bench. Subsection (4) is thus in the nature of curative section designed to protect the validity of any orders passed by Full Bench of the Commission which was consisted of not less than three members. Mr. Rahmatoola's contention is that subsection (4) is in conflict with clause (a) of subsection (2). We do not find any force in this contention. We are of the view that clause (a) provides for constitution of Full Bench of the Commission and subsection (4) deals with cases in which all the members of the Full Bench of the 1 Commission do not sit to decide. We are also of the view that clause (a) does not control subsection (4). There is no conflict between these two provisions but they are independent. Even if the two provisions are read together, the conclusion is that the Full Bench shall consist) of minimum three members but lesser number of members would sit to decide a particular case and by the mere reason of three members not being the deciding members, the validity of the decision is not affected. Our conclusion is that Full Bench of the Commission was properly and the decision is not invalid for the mere reason of the same having been made by two members of Full Bench of the Commission.
36. This view finds support from the case Habib Bank (Overseas) Ltd. v. Monopoly Control Authority PLJ 1981 Kar. 32.
37. For the reasons given above, the petition is dismissed. The result is that the order of the respondent No. 1 is in accordance with law. As the question involved was not free from difficulty, there will be no order as to costs.