' The validity of the communication dated 18-4-1988 by the Registrar of Trade Unions, Rawalpindi Region, Rawalpindi, the Certificate of Registration dated 6-7-1988 by the Registrar of Trade Unions and the order of Registrar Trade Unions dated 29-5-1988 are called in question in this Constitutional petition on the ground that Rawalpindi Club, Rawalpindi is a recreational institution and cannot be treated as an 'industry' under the provisions of Industrial Relations Ordinance, 1969, herein described as "Ordinance".
2. The facts in the petition are undisputed. A few necessary admitted facts leading to the petition are: that the Rawalpindi Club Rawalpindi is a Company by guarantee registered under the Companies Act, 1882, was founded by a group of military officers belonging to the Northern Command while Mushtaq Hussain Khan and Mushtaq Ahrnad Abbasi, herein the respondents, are the Secretary and the President of All Staff Rawalpindi Club, Rawalpindi Union (hereinafter described as Union). The Registrar Trade Unions, Rawalpindi accepted the application of the Union and issued Certificate of Registration under section 22(1) of the Ordinance and certified that the Union shall be Collective Bargaining Agent on behalf of workmen of club. The Registrar Trade Unions vide order dated 29-5-1988 declined to cancel the registration of the Union. Hence this petition.
3. Learned counsel for the petitioner in support of the petition raised the following points:-- ' It was contended that the Club was a Member Club providing recreational activities to its members, did not undertake any business or trade or profit or any other human activity analogous to industry, therefore, it did not fall within the defamation of the industry in clause XIV of section 2 of the Ordinance. Elaborating his submission further, learned counsel contended that the activities of the Club were not within the ambit of the words 'calling, service, employment, occupation, or undertaking'. Reliance was placed on K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah.
1097; The Project Manager, Pakistan Mineral Development Corporation and Gola Kiwi Collieries, District Mianwali v. Punjab Labour Appellate 'tribunal, Lahore and 2 others 1986 PLC 521; Muhammad Fahimud Din v. Shaheen High School (Pakistan Air Force), Karachi 1986 PLC 401 and Muhammad Mudabbir v. The Director, Building Research Station, Karachi and another 1986 PLC 129.
' Secondly, it was argued that Club was founded by the group of Army Officers who belonged to the Northern Area Command to provide social recreational facilities to the members of the Club in Cantonment of Rawalpindi. It was argued that the Club was provided services connected or incidental to the Armed Forces of Pakistan and, therefore, it was excluded from the operation of Ordinance under subsection 3(a) of section 1 of the Ordinance. Reliance was placed on Rehmat Gill and another v. Quetta Cantonment Board PLD 1983 SC 133; Gujrat Khawajgan Co-operative Urban Bank Ltd. v. Sheikh Mazhar Hussain 1979 PLC 10; United Builders and Associates v. Presiding Officer; Punjab Labour Court No, 1 and others 1976 PLC 855 and Din Muhammad alias Dona v. Manager Army Stud Farm, Depalpur, District Sahiwal 1978 PLC 261.
4. Learned counsel for the respondents, in reply, supported the registration union and the impugned order of the Registrar Trade Unions, dated 29-5-1988 and the Certificate dated 6-7-1988.
It was contended that the term 'industry' was not to be given restrictive interpretation. It was suggested that the word 'industry' in the Ordinance was of the widest amplitude. It was contended that the activities of the Club fell within the word 'calling'. He argued that the Club comprised of a membership of 1520 members out of which only 2/3rd members were regular members belonging to the Armed Forces while the rest were civilian. This membership completely demonstrated that it did not provide services exclusively to the Armed Forces and the Club was not immune from the operation of the Ordinance. Reliance was placed on A.F. Ferguson & Co. v. The 5th Sind Labor Court, Karachi and another 1974 PLC 98.
5. As indicated above, the main questions calling for examination are `whether the Club is a recreationary institution and cannot be treated as 'Industry' under clause (xiv) of section 2 of the Ordinance 'and whether the services provided by the Club and connected with are incidental to the Armed Forces.
6. Before examining the questions, it would be useful to examine the relevant provisions of the Ordinance which are as follows:-- Section 2.
(ix) "establishment" means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry.
(xiv) "industry" means any business, trade, manufacture, calling, service, employment or occupation; (xxvi)"trade union" means any combination of workmen or employers formed primarily for the purpose of regulating the relations between workmen and employers, or workmen and workmen or employers and employers, or for imposing restrictive conditions on the conduct of any trade or business and includes a federation of two or more trade unions; (xxviii)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 expressed or implied, and, for the purpose of any proceedings under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid off or oil hernias removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay off, or removal has led to that dispute.
7. The aforesaid words have come into consideration before the superior Courts on a number of occasions in respect of diverse institutions like Municipalities, Hospitals, Universities, Research Institutions and the Clubs and the Courts have laid down the different yard stick in order to ascertain whether the institution is 'industry' or not. It is, therefore, necessary to examine the various precedents cited before me.
8. In A.F. Ferguson & Co. v. The 5th Sind Labour Court, Karachi and another 1974 PLC 98 the Court dealt with the question whether a Trade Union of the Staff of a firm of Chartered Accountants was an 'industry' or not. The Division Bench of the High Court of West Pakistan held that the firm of Chartered Accountants was an 'industry' under the Ordinance. After examining the whole of Labour Legislation his Lordship Mr. Justice Dorab Patel, in para. 5 of the judgment observed as under:-- "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 wide, 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 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 wide 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 must depend on the definition
9. In this case the High Court laid down that the word 'industry' was to be given wide interpretation.
It was not to be given a restrictive meaning and that within the sweep of word 'industry' the activities of firm of Chartered Accounts were included.
10. In another case reported as K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v.
Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097, the essential terms in the Ordinance, industry, trade, business, manufacture, calling, services, industrial dispute, employer, workmen and establishment came under the elaborate examination. The moot questions under adjudication were 'whether the Technical Training Centre Gujraliwala, 'whether the University of Punjab, and 'whether the Board of Intermediate and Secondary Education, Sargodha' came within the scope of the word 'industry' under the Ordinance. His Lordship Mr. Justice Shallur- Rehman, after examining the whole of Labour Laws, came to the conclusion that the aforesaid institutions were not industries and therefore, the Registration Authority, had no jurisdiction to register the Union of workmen of these institutions. It will be useful to reproduce the observations of the Court which are 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 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 cooperation between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or provision of material services. The enterprise as a whole has to be looked at to find out its raison deter, and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole."
' As indicated above, the dispute relating to interpretation of definition of `industry' has been made by our Courts with reference to the rule enunciated in Federated Municipal and Shire Council Employees of Australia v. Melbourne Corporation 26 C L R 508 which is as follows:- "The concept may be thus formulated. Industrial disputes occur when, in relation to operations in which capital and labour are contributed in cooperation for the satisfaction of human wants or desires, those engaged in cooperation dispute as to the basis to be observed, by the parties, respecting either a share of the product or any other terms and conditions of their co-operation.
This formula excludes the two extreme contentions of the claimant and the respondents respectively. It excludes, for instance, the legal and the medical professions, because they are not carried on in any intelligible sense by the co-operation of capital and labour and do not come within the sphere of industrialism. It includes, where the necessary co-operation exists, disputes between employers and employers. It implies that 'industry', to lead to an industrial dispute, is not, as the claimant contends, merely industry in the abstract sense, as if it alone affected the result, but it must be acting and be considered in association with its co-operator 'capital' in some form so that the result is, in a sense, the outcome of their combined efforts. It also implies that `an industry' in relevant sense, is not confined to a single enterprise, but means a class of operations in which all persons, employers and employees, are engaged on the same field of industry not necessarily of commerce provided by the society in which they exist."
' Finally as regards the profits, it was observed:-- "The question of profit-making may be important from an income-tax point of view, as in many municipal cases in England; but, from an industrial dispute point of view, it cannot matter whether the expenditure is met by fares from passengers or from rate."
12. In another Australian case reported as Federated State School Teachers Association of Australia v. The State of Victoria and others 44 C L R 569, Isaacs, J. Held as under:-- "Can it be said that the educational activities of the state constitute an industry. So far as the matter is one of fact, we would say that they cannot. They bear no resemblance whatever to an ordinary trade, business or industry. They are not connected directly with, or attendant upon, the production or distribution of wealth and there is no cooperation of capital and labour, in any relevant sense, for a great public scheme of education is forced upon the communities by the States by law."
13. In Hospital Mazdoor Sabha's case AIR 1960 SC 610, the term `business' was interpreted in the following manner:- `Business' is a wider term not synonymous with trade and means practically 'anything which is an occupation as distinguished from pleasure'. The word calling again is very wide, it means 'one's usual occupation, vocation, business or trade, so is 'service' very wide in its import. Prima facie, if the definition has deliberately used words of such wide import, it would be necessary to read these words in their wide denotation, and so read, Hospital cannot be excluded from the definitions."
14. In Madras Gymkhana Club Employees Union v. Management of Gymkhana Club AIR 1968 SC 554 it was held that before an activity of institution can be described as an 'industry', it must be established that it must bear the definite character of trade or business or manufacture or calling or must be providing some material service to community. The word 'undertaking' was also examined in the Madras Gymkhana Club case and the following observation was made with respect to expression `undertaking':-- "Of these categories' undertaking is the most elastic It is this category which has figured in the cases of this Court The word under taking must be defined as 'any business or any work or project which are engaged in or attempts as an enterprise analogous to business or trade':
15. From the foregoing analysis of the words "establishment, industry, trade, union, worker, workman in the Ordinance and the Rules laid down in different precedents, the following rules emerge laying down the test for determination of a fact whether a human activity or human enterprise is industry or not:-- #TBS (i) #TBE That the word 'industry, business, trade, manufacture are not to be given dictionary meanings. These words are of a wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not.
(ii) 'Industry' is a systematic human activity or enterprise in which labour is employed by the employer for the purpose of conducting business as a mean of livelihood earning profit or for rendering material service to the community with the active participation of the workman. In this activity, labour and service is provided by workman while the capital is provided by the employer.
(iii) The human activity must not be casual or for recreation. It must not be for a pleasure. It must be carried out by the workmen and employer for the purpose indicated above.
(iv) The human activity is carried out by the workmen at the behest of their masters who are to undertake the task of organization and are to provide the necessary means for carrying out the activities.
(v) The earning of the profits in this dctivity is not essential. It may even provide material service to the community in an organized manner.
16. Before applying these principles to the Rawalpindi Club, it would be relevant to examine the salient features of this Club.
17. It is to be noticed that this Club was established by the Officers of the Armed Forces in 1888 to provide recreational facilities to its members. The object of Club is given in para. 3 of the Memorandum of Association which is as follows:-- "To establish, carry on and maintain at all times hereafter in an efficient manner, a social and residential Club, in the Cantonment of Rawalpindi, in the District of the same name, in the Punjab Province of Pakistan and a branch or branches of the said Club at any such other place or places as the Company may from time to time, or any time or times hereafter, deem to be beneficial or fit, for the use, relaxation convenience and comfort of the members for the time being of the Company, or any persons who may for the time being, under the Articles of Association for the time being of the Company, be entitled to exercise all or any of the rights and privileges of such membership".
18. This Club has undeniably varied membership comprising of regular members, temporary members, mess members, casual members and honorary members. The exceptional features of the membership are that all the serving Army Officers below the rank of Lt. Col. Are compulsorily mess members.
19. The Management of the Club lies in the Executive Committee who is also subject to the control of general meeting. The Constitution of the Committee is as follows:--
(a) Nomination
(1) The President to be nominated by COAS, Pakistan Army;
(2) a serving officer of the Defence Services, to be nominated by G.H.Q.
(3) a serving officer of the Defence Services, to be nominated by the President to represent the Officers of the Defence Services stationed at Rawalpindi; and
(4) Base Commander P.A.F. Chaklala, or his representative approved by the ' President of the Committee.
(b) Elected.
(1) Three serving officers of the Defence Services and
(2) Five civilians; and
(c) Not more than three Ex-officio Members.
(d) The Vice-President to be elected by the Committee from amongst its Members in accordance with Article 84.
20. The Club has a number of employees to carry on the activities of the Club.
21. This Club provides recreational facilities. It has the tennis court, cricket ground, and provides arrangement for indoor games, billiard room, card rooms and also residential facilities. It had a large membership and the activities of the Club which related to the facilities for pleasure, and amusement of its- members although the outside members can come in order to enjoy these facilities but they can only come at the invitation of the members, therefore, it can be safely said that the activities of the Club are neither analogous to trade, business, calling nor they provide any service to the community.
22. From the examination of the Constitution of Club, membership and the facilities, it provides to its members, it can be said without any contradiction that it is a member club. The activities of the Club are exclusively for the pleasure and recreation of its own members. It does not provide any permanent service to the community. It does not undertake any human activity which may fall within the ambit of business, trade, manufacture, calling, services, employment or occupation. I am, therefore, of a clear view that it cannot be treated as an `industry' and the Registrar Trade Unions, therefore, had no jurisdiction to entertain this application or register a union of workmen of this Club as a Union under the Ordinance.
23. Yet there is another aspect of this case. It is clear from the memorandum of association that this Club was founded by the members of the Armed Forces for providing recreational facilities to the Cantonment. The word "Cantonment" is defined in the Cantonment Act as under:-- "The Central Government may, by notification in the official Gazette, declare any place or places in which any part of the regular forces or the regular Air Force of Pakistan is quartered or which, being in the vicinity of any such places, is or art, required for the service of such forces to be a cantonment for the purposes of this Act and of all other enactments for the time being in force, and may, by a like notification, declare that any cantonment shall cease to be a cantonment."
24. The word "cantonment" means that it is a place where Regular Forces are quartered. The Club was founded in 1888 for the purpose of providing recreational facilities to the residents of the cantonment. The word "cantonment" came up for consideration in Rehmat Gil and another v.
Quetta Cantonment Board PLD 1983 SC 133 where the Supreme Court of Pakistan held as under:-- "The very raison deter for a cantonment is the quartering or the requirements in the vicinity concerning the quartering of regular forces. In this context therefore all the duties of cantonments, though some of them may be routine duties of a purely municipal character, are directed towards the quartering of the troops and their requirements. The proportion of civilian population in a cantonment, the extent to which it is affected is not determinative but only incidental to the primary function of the Cantonment Boards. Section 11 of the Cantonments Act makes the Cantonment Boards body corporate, section 13-A read with section 30 makes the officer commanding the station the President of the Board. The municipal duties of the Boards are prescribed in section 116. Section 117(2) permits the Cantonment Boards to undertake certain duties and incur expenditure outside the cantonments limits as well on conditions being satisfied.
' Section 1(3) of the Industrial Relations Ordinance provides as follows:- "1(3) It shall not apply to any person employed--
(a) In the Police or any of the defense services of Pakistan or any services or installations connected with or incidental to the Armed Forces of Pakistan including an Ordnance Factory maintained by the Federal Government".
The contention of the appellants is that Cantonment Board is not an installation or establishment nor services connected with Armed Forces and service therein cannot, for that reason qualify for exemption. It is true that the Cantonment Board is not an installation but it is difficult to accept that it is not concerned with services connected with defence. The management and administration of the Cantonments vests in the Cantonment Boards. The Cantonments themselves being the quarters of the Armed Forces, their management and upkeep is necessarily a service which is directly concerned with the Armed Forces, and only incidentally with civilian population residing in Cantonments. The employees of the Cantonment Board are, therefore, excluded from the application of Industrial Relations Ordinance."
25. Applying the principles laid down in the abovementioned precedent (Rehmat Gil's case), I am of the view that the activities of the Club arc excluded from the operation of the Industrial Relations Ordinance, 1969 under sub-clause 3(a) of section 1 of the Ordinance.
26. In the light of the foregoing reasons, I hold that the Rawalpindi Club, Rawalpindi, is not an 'industry' and the Registrar Trade Unins had no authority to deal with the application of the workmen of the Rawalpindi Club, Rawalpindi, therefore, I accept this petition and hold that the impugned communication dated 18-4-1988, the Certificate of Registration dated 6-7-1988 and the order dated 29-5-1988 passed by the Registrar of Trade Unions, Rawalpindi Region, Rawalpindi, are plainly without jurisdiction and those are declared as such.. However, this decision shall not in any manner affect or deal with the status, legal rights and obligations of employees under any other law than the Industrial Relations Ordinance, 1969.
27. This petition involved a question of intricate nature and interpretation of law, I, therefore, pass no orders as to costs.