MRS. FAKHAR-UN-NISA-KHOKHAR, J.- The instant petition relates to important questions of law. The first is whether the petitioner-Society known as Idara-e-Kissan is not an industry as defined in Section 2(xiv) of the industrial Relations Ordinance, 1969 and secondly whether the registration of the Trade Union of its employees without a notice to the Employer is legal and valid under the provisions of the afore-said Ordinance.
2. Learned counsel for the petitioner submits that the Federal Republic of Germany on 25.11.1972, entered into an agreement with the Islamic Republic of Pakistan with regard to the technical co- operation in different fields. Both the Governments under a separate agreement started a project known as "Pattoki Livestock Production Project in Punjab". This agreement stipulated to major project activities which are as under:-
1. Raising income of small scale livestock farmers in Pattoki area by increasing livestock production and
2. Developing a practical model of self-Help organization to improve the livestock production.
This Project started functioning in 1983 and the first term of the agreement expired on 31.12.1989. This included:
1. Animal Health Section
2. Animal Breeding and Artificial Incemination Section.
3. Fodder Section
4. Women Section
5. Extension Section (Idara-e-Kissan)
6. Milk Procurement, Processing and Marketing Section
7. Monitoring and Evaluation Section The expenditure borne by both the Governments till 31.1.1989 was 625.65 German Marks and 99.99 pak. Rupees, total Rs. 725.64. Through further contribution by both the Government from 1.1.1990 to 30.6.1991 total expenditure was increased to Rs. 778.25. This Project; according to the learned counsel is headed and controlled by the German Government through a Project Manager Dr .Hans Helmirch in collaboration with the Government of Punjab. Subsequently a self- help organization was constituted with the names of Idara-e-Kissan which was found registered on 11.7.1989 under the Societies Registration Act XXI of 1860. The aima and object of the Society are given in the Memorandum of Association appended with the instant petition.
3. So far as the assets and liabilities of the Society are concerned, according to the Memorandum the income and property of the Society was to be applied entirely towards the promotion of the objects of the Society and according to the learned counsel for the petitioner was to be given in private hands on self- help basis and in order to make themselves sufficient they had the authority to sell-milk and purchase milk and a dairy form HALLA was also formed. This Society, according to him, is meant for education and welfare of the livestock and no portion of it is paid or transferred directly or indirectly in the shape of dividend or bonus or otherwise by way of profit to the persons or to any member of the Society. Both the Governments had agreed to continue the above Project by providing necessary funds till 31.12.1992. The German Government has further provided aid to the extent of Rs.1,50,000/- and the Society was to receive Rs.1,34,19000/- as is apparent from the letter of Project Manager to the General Manager of the Society duly appended with the instant petition.
On 8.10.1990 the employees of the Petitioner-Society constituted a Union in the name and style of Idara Kissan Employees Union and that according to the arguments of the learned counsel without any notice to the petitioner-Sodety the Registrar accepted the application filed by the respondent- union vide order dated 8.11.1990. The petitioner-Sodety moved for the cancellation of the order on 5.9.1991 as they refused to accede to the demands put by the respondent No3 and this gave rise to the instant writ petition on the ground that the Sodety is registered under the Sodeties Registration Act.No.XXI of 1860 and according to this Act it covers registration of literary, identific and charitable sodeties. The Sodety registered under this Act cannot be termed as an industry and as such the order of the respondent No.1 to register trade union is completely illegal and according to the learned counsel for the petitioner the main object of the Sodety is the promotion and diffraction of useful knowledge regarding agriculture, livestock, community health and other related fields amongst farmers, agriculturists and house-Holds in the rural areas of the Punjab and also meant for mother and child care in the women section. He further argued that infact the word 'Industry" means any Enterprise which is organized and is systematic though not entirely but substantially 6n the co-operation between labour and capital and is possessed with an object of production, distribution and consumption of wealth or the provision of material services. The Enterprise as a whole has to be looked as to find out its raison detre and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole. He has relied on K.G.Old.Principal Christian Technical Training Centre Vs. Presiding Officer. Punjab Labour Court (P.L.D 1976 Lahore 1097, Ghulam Ghaus vs. District T.B. Association. Lyallpur (1976 P.L.C. 79), Madras Pinjarapole vs. Labour Court. Madras and another (1961 PLC 414 ) and Rawalpindi Club, Rawalpindi vs. Registrar of Trade Unions and 2 Others (1989 P L.C 760). So according to the contention the learned counsel since the Society is not an industry the registration of the Union is completely against the relevant provisions of the Industrial Relations Ordinance, 1969. He next argued that no notice was served on the petitioner-Society nor the Registrar of Trade Unions associated the petitioner-Society before the issuance of the certificate for the registration of the Trade Union. The requirement of Section 7(2) of the I.R.O. Stands contravened because without notice to the petitioner- Society it could not be worked out by the Registrar to ascertain that the members are workmen or not, so the grant of certificate without such notice, according to him, is contrary to the provisions of Section 7(2) of the I.R.O.
4. Learned counsel for the respondents, on the other hand, vehemently opposed both the stands taken by the learned counsel for the petitioner. He has submitted that according to sections 7 and 8 of the Industrial Relations Ordinance, 1969, notice is no where required to be given to the employer. So far as the question of registration of the Union is concerned, it is purely a matter between the workmen and the Registrar and according to sections 8 and 14 of the I. R.O. The Registrar has to satisfy himself about the issuance of certificate of registration. After registration, the Registrar under section 22 of the Industrial Relations Ordinance shall conduct the Collective Bargaining Agent. It is also mandatory for the Registrar to give a copy of the Registration to the employer while the employer kept mum. Even the CBA was constituted. The matter was not agitated by the employer. It is only for the first time when demand notice was issued and there and then the matter was agitated. According to the contention of the learned counsel for the respondent as no provision for giving a notice to the employer exists in the IRO issuance of a certificate by the respondent No.1 is completely within the lawful authority of the Registrar and it has caused no prejudice to the employer nor it has taken back any right. Since no right is given to the employer it is the workman whose right has been guaranteed by the provisions of I.R.O. To represent the right of a worker and not the employer . He has further submitted that the contention of the learned counsel for the petitioner that Idara-Kissan-Petitioner is not an industry and is completely wrong and erroneous. According to section 2(xiv) of the I.R.O."industry" means any business, trade, manufacture, calling, service, employment or occupation. According to the nature of services to the formers, employing people, conducting business or service, collecting milk and selling and earning profit, falls within the definition of industry. He has further submitted that infact the act of services rendered should benefit the others and according to his submissions the law has advanced since the decision of ICG. Old's case. The learned counsel has relied on E.O.B.I.
Employees Federation vs. Messrs. Employees Old-Age Benefits Institution (1985 PLC 891), where ICG.
Old's case also stands discussed. He has further relied on The State of Bombay and others vs. The Hospital Mazdoor Sabha etc. (AIR 1960 S.C.610), Management of Municipal Committee, Mianwali vs. The General Secretary, Municipal Muharrirs' Union and another (PLD 1968 Lahore 395), The Pakistan International Airlines Corporation vs. The Registrar of Trade Marks, Karachi (PLD 1980 Karachi 472), Don Basco High School vs. The Assistant Director, E.O.B.I etc. (PLD 1989 S/C.128) and Lahore Development Authority vs. Abdul Shafiq (1992 PLD 1214 ). According to his contention the word "Industry" is now even applies to the hospitals, schools and the Municipal Committees also. In-fact the main characteristic of industry should be present in a registered Society. He has further contended that the present petitioner has been registered with the Social Security which does not relate to charitable institution. The business is conducted through cheques, milk is purchased and sold and the profit and gains also achieved by the Association and it very well comes within the definition of the ton Industry.
5. I have heard the arguments of the learned counsel for the parties and gone through the Memorandum of Association and also the relevant law on the subject-matter .The conventional meaning of the words "trade" or "business" has some of its valildity for the purposes of industrial adjudication. It must recognize that in the modern State healthy industrial relations are a matter of paramount importance and its essential function it to assist the State by helping a solution of industrial disputes which constitute a distinct and persistent phenomena of modern industrialised state. The work 'trade union" has been defined in section 2(xxvi). It 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 of the conduct of any trade or business and includes a federation of two or more trade unions.
(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 and except in section 22EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments.
"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, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed, discharged, retrenched, laid-Off or otherwise 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, but does not include any person.
(a) who is employed mainly in a managerial or administrative capacity, or
(b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature.
Activity undertaken by the Government in the interest of Socio economic progress of the country as beneficial measures are not exempted from the operation of this Act. The West Pakistan Establishment Ordinance applies to shops commercial Establishment, industrial establishments, private dispensaries, maternity homes, residential hostels, restaurants, eating house cafe, Cinemas theatrs or other places of establishment where the Government by Notification declared it to be the establishment. The activity must be organized and arranged and the condition of cooperation of the employer and the employees must be the object to render material assistance to the community. The word "undertaking" means a character of activities which is conducted irrespective of the fact whether it is conducted for profit or no-profit.
In the Management of Municipal Committee vs the General Secretary. Municipal Muharrirs' Union and another (PLD 1963Lahore 395), it was held that the Municipal Committee is an industry in respect of non-Regal functions (other than those of tax collecting). Industrial disputes can be raised between the Municipal Committee and its employer within Geld of "non-Regal" functions, while other activities of Municipal Committee such as making, preparing roads, sanitation and conservancy running hospitals and schools which does not pertain to regal functions of the Government and can be undertaken by the private concern of individuals as well they are, therefore, an undertaking and can. Be classed as Industry, while the function of levying and collecting the taxes which are only performed by the function-aries, the workmen who are engaged by the Municipal Committee to perform the functions which are in the nature of regal or the sorvereign functions of the Government and have been delegated to the Committee will not fall within the category of workman.
In Don Basco High School vs. The Assistant Director. E.O.B.I.Etc (PLD 1989 S.C.128), it was held that the organization itself being broad to include school in the degnition of establishment.
In K.G.Old. Principal. Christian Technical Training Centre. Gujranwala vs. Presiding Officer. Punjab Labour Court and others (PLD 1976 Lahore 1097), it was held that the object production, distribution and consumption of wealth in an enterprize as a whole is to be looked at to Gnd out its raison detre and any part which is incidental ancillary of an adjunct cannot determine the character as a whole. The industry within the definition of section 2 of the Industrial Relations Ordinance means any business, trade manufacture calling service employment or occupation. The original character of calling service has not been retained and they have been directly called industry without seeing there is any element of business, trade or manufacturing them according to the definition not only the business, trade manufacture can be called as an industry in the special terms in which industry is defined but calling service, employment as accupation will also be industry.
The industrial disputes when occur in relation to operation of capital and labour are contributed in co-operation for the satisfaction of human wants or desires. It excludes the legal and medical professions because they are not carried by the co-operation, capital and labour.
It was further held that the industry must bear the definite character of trade or business or manufacture or calling and it must be capable of being described as an undertaking immaterial good and material service. The material service involves the activity carried through the cooperation between the employer and the employee.
In Ghulam Ghous vs. District T.B Association. Lyallpur (1976 PLC 79) it was held that the charitable institutions are neither an industry nor commercial est ablishment.
In Hakimullah Khan vs. Secretary. Pakistan Red Cross Society. Karachi (1975 PLC 99), it was held that the Red Cross Society does not come within the purview of industry.
In Rawalpindi dub, Rawalpindi vs. Registrar of Trade Union etc (1989 PLC 760), it was held that the test for determining whether a human activity or human enterprise could be deemed as an industry or not:
(i) The Words' 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 means of livelihood, earning profit or for rendering material service to the community with the active participation of the workmen. In this activity, labour and service is provided by workmen 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. 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.
(iv) The earning of the profits in this activity is not essential. It may even provide material service to the community in an organized manner.
The same view was taken in Ghee Corporate ion of Pakistan vs. Registrar, Trade Unions and another (1991 PLC 207).
6. As far as the question of industry is concerned, I have been that the petitioner (Idara-e-Kissan) is a registered Society and it does generate income, it is possessed with the capital and there is systematic activity undertaken for the production and distribution/selling the milk and also it renders the material service to the community at large. Lt is easily termed as an undertaking within the purview of the Industrial Relations Ordinance because any enterprise which has the productive or distributing and consuming the self-capacity it can be termed as an industry because it is a systematic arrangement for a definite purpose. For these reasons I hold that Idara-e-Kissan is running a factory which is meant for producing and selling milk which means that it also possesses a class of operation in which all persons i.e. The employer and the employees are engaged. So it is industry within the purview of the provisions of Section 2(XIV) of the I.R.O.
So far as the next question of notice to the employees is concerned, the definition of the employer in the IRO given in Section 2 in relation to an establishment means any person or body of persons, whether incorprorated or not, who or which employs workmen in the establishment under a contract of employment and includes-
(a) an heir, successor or assignee as the case may be, of such person or body as aforesaid;
(b) any person responsible for the management. Supervision and control of the establishment;
(c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department;
(d) in relation to an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the chief executive officer of that authority, Special Provision-For the purpose of distinction from the category of "worker or workmen" officers and employees of a department of the Federal Government or a Provincial Government or a local authority, who belong to the superior managerial, secretariat directional^supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers.
(e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof.
The "industrial dispute" means any dispute or difference between the employers and employers or between employees and workmen or between workmen and workmen, which is concerned with the employment or nonemployment or the terms of employment or the conditions of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force.
Under section 7(2) of the I.R.O. There is no provision of giving any notice to the employer but the real facts are that it is not possible to comply with the provisions of this section without associating in the proceedings the employer and the union or unions already in existence. Without hearing the employer if the Union is registered this will be violative of the principle of natural justice and Social Justice because of members whether they are workmen or not or actually engaged and employed in the industry with which the trade union is connection.. The requirement of registration of union means that if there are two or more unions then the new union must possess l/5th of the total members of the workmen employed in such establishment as its members. It is therefore a statutory duty of the Registrar to find out whether there is a union or unions already in existence in the establishment of the Industry. It is again not possible to correctly ascertain the true facts without associating the establishment or industry. Moreover the basic requirement of this section for registration of union cannot be achieved without associating the employer as held in the Punjab Agricultural Development and Supplies Corporation Employees Welfare Union (C.B.A) vs. Registrar Trade Unions. :Bahawalpur Region and others (1991 PLC 38) and other chain of authorities of the superior Courts. Therefore, the employer is entitled to notice of hearing bv the Registrar before an application for a new trade union is granted. It is to avoid mis-Statement or withdrawal' of material facts so as to enable the Registrar to conclude the matter according to law and the view of Social Justice.
In E.O.B.I. Employees Federation's case it was that the employer has no locus standi to challenge the legality of registration of the union. Since the procedure of not joining the employer at the time of registration of the new trade union is violative of the principle of natural justice and also not within the purview of section of the Industrial Relations Ordinance, 1969 the intention of legislature is very dear. The employer being a necessary party is entitled to a right of hearing by the Registrar while registering a new trade union.
7. In view of my above observation, I partly accept this petition and set aside the order dated 8.11.1990 for the issuance of certificate of registration of trade union and remand this case back to the Registrar of Trade Unions, Lahore Region, Lahore to give an opportunity of hearing to the petitioner-employer before issuing a fresh certificate of registration to the new trade union. He is further dected to conclude the matter within two months of the passing of this order after giving due opportunity of hearing to the petitioner as well as the trade union or trade unions. As the case