DECISION This appeal has been filed under section 11(a) of the Industrial Relations Ordinance against the order passed by the Labour Court directing the cancel--lation of the registration of the appellant- Union.
2. Majority of the employees of the University of Karachi formed a Trade Union known as --- Employees--- Union Jamia Karachi and it was registered as such with the Registrar of Trade Unions on the 20th of March, 1971. Subsequently my learned predecessor decided on 20th of February 1973, in appeals No. Ka.r. 152 of 19 72 re: case of Aisha Bawany Academy (Girls School)
Karachi v. Madar Buksh, that an Educational Institution was not an ---Industry---. On the basis of this decision the Registrar of Trade Unions made an application under section 10(1) of I. R. O. On 12th March 1975 for the direction to cancel the registration of Trade Union.
3. The application was resisted and it was pleaded that the Union was duly registered and neither the provisions of the Ordinance nor constitution had been contravened. There was also no provision inconsistent with the Ordinance or rules. On the date of hearing i.e. 31st of March 1975 none on behalf of the Union was present and, therefore, it was ordered that ex parte proceedings be taken and the respondent was required to the affidavit as ex parse proof on 5th of April 1975.
However, on 1st of Cpl 1975 the General Secretary of the Union made an application for setting aside the ex parte order. An order setting aside ex parte order was passed on the 17th of April 1975.
On 25th of April 1975 the union filed the written statement. The case was adjourned to 5th of May 1975 but none appeared on behalf of the Union. However the case was adjourned to 7th of May 1975 for cross-examination of the witness whose affidavit had been filed on behalf of the Registrar. On the adjourned hearing again none was present on behalf of the Union and, therefore, the side of the Union was closed and the impugned order was passed directing the cancellation of the Union.
The Labour Court relied upon the aforesaid decision of my learned predecessor. Aggrieved by this the present appeal had been filed.
4. A preliminary objection was taken on behalf of the Registrar of Trade Unions that although no period of limitation was prescribed for filing an appeal against the order aforesaid but the appeal ought to have been filed within a reasonable period and since the appeal was filed after about five months it suffered from (aches. The impugned order was passed on 17th of May 1975 while the present appeal was filed on the 24th of October 1975. No ground has been pleaded for filing the appeal after five months. In my view period of five months cannot be considered to be a reasonable period and the objection raised by the Registrar must prevail.
5. Despite my above view I would like to dispose of the appeal on merits as an important question of law is involved. The main ground for making the application was that the University was not an - --Industry--- within the meaning of the Ordinance and, therefore, it could not be registered and since its registration was invalid it was liable to be cancelled. To support this contention reliance was placed upon the authority of the Supreme Court of India in the case of University of Delhi v.
Ram Nath (AIR 1963 SC 1873) which was also followed by my learned predecessor in the aforesaid decision. On the other hand reliance on behalf of the Union was placed on the decision of the High Court of Sind & Baluchistan in the case of A. p. Ferguson & Co. v. Sind Labour Court and another (1974 PLC 98).
6. Since the main question for consideration is whether the University is an ---Industry--- or not it is necessary to refer to the term ---Industry--- as has been defined by section 2(xiv) as amended by section 2(d) of Ordinance (No. XIX of 1870). It reads as under ------Industry--- means any business, trade, manufacture, calling, service employment of occupation".
7. It may be noted that the word ---undertaking--- appearing in the definition had been omitted.
Another change which had been effected is that the term has been defined in the usual manner without any extension unlike the previous definition.
8. The definition as it stands should be read in relation to the employer and the employees commonly engaged with the definite objective of the of the material needs of the humanity and that in an organised manner. There can be no industry in the absence of the aforesaid cooperation between capital and Labour or the objective. This has been succinctly stated by Isaac J. In Jambuna Coal Mine No Liability v. Victoria Associa--tion (1) as under: ---An industry contemplated by the Act is apparently one in which both employers and employees are engaged, and not merely industry in the abstract sense, or in other words, the labour of the employees, given in return fur the remuneration received from his employer. As suggested, not only by the words defining ---industry--- itself, but also by schedule B and by such a phrase in the definition of ---industrial dispute--- as employment in industries carried on by or under the control of the Commonwealth etc., an 'industry' as intended by Parliament seems to be a business ete., in which the employer on his own behalf is engaged as well as the employees in his employment.
Turning to the specific definition of 'industry' it rather appears to mean a business (as merchant), a trade (as cutler), a manufacturer (as a flour miller), undertaking (as a Gas Company), calling (as an engineer) or service (as a carrier) or an employment (a general term like 'calling' embracing one of the others, and intended to extend to vocations which might not be compromised in any of the rest all of these expressions so far indicating the occupation in which the principal, as I may call him, is engaged whether on land or water. If the occupation so described is one in which persons are employed for pay, hire, advantage, or reward, that is, as employees, then, with the exception stated, it is an industry within the meaning of the Act.---
8. Thus, there are to distinctive feature of an 'industry', (6 C L R 309) that the employer as well at the employees should be engaged in the industry' and (2) that there should be co-operation between both of them for achievement of a particular result.
9. The definition of the term is wider than the conception of trade or business as commonly understood. A comprehensive meaning was evidently thought necessary, as the objective behind the I. R. O. Is to secure peace and speedy remedy for labour discontentment arid unrest. In this connection it was observed by the Supreme Court of India in the case of Benerji v. Mukherjee (AIR 1953 SC 58) as under: - "It is obvious that the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry so that dispute arising in connection with them might be settled without much dislocation and disorganization of the needs of society."
10. Examining the various words used in the definition of the term "Industry", it is clear that the University cannot be said to be business, trade, manufacture, calling, employment or occupation.
So the only question to be considered is whether it is service" to fall within the scope of the definition.
11. In common parley, word, "service" has a very wide connotation as it embraces every kind of service extending the services rendered by servant purely in a personal or domestic matter or even in a casual way This has been aptly stated in the case of State of Bombay v. Hospital Mazdoor Sabha ((1960) 17 F J R 423) as under: - ---It is clear, however, that though section 2(j) (Industrial Dispute Act uses words of very wide denotation, 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, all services and all callings would come within the purview of the definition; even service 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 whatsoever capacity and for whatsoever reasons.---
12. A line, therefore, has to be drawn somewhere in every definition sole as to ascertain its true import and implication.
13. Literally, establishment of University with the object of importing education in a service to humanity but the word ---service--- in the definition has not been used in the literal sense but has been used in a technical sense. In order to consider whether a University falls within the mischief of the word used in the definition and consequently an ---industry--- it is necessary to examine the aims and objects of the establishment of a University.
14. It cannot be disputed that University is a cultural and educational institution, established with the sole object of promoting languages, imparting higher education, holding examinations and encouraging younger generation to take up research in various fields so as to be useful citizens in order to serve the country and the mankind in general. This can hardly be treated to be an enterprise to fall within the meaning of service, as contemplated by the Legislature.
15. In this connection I would like to reproduce some of the pertinent observations made by the Supreme Court of India in the case of University of Delhi v. Ram Nath (AIR 1963 SC 1873) as under:- ---It is not surprising that the Act should have excluded education from its scope, because the distinctive purpose and object of education would make it very difficult to assimilate it to the position of any trade, business or calling or service within the meaning of section 2(j). Education seeks to build up the personality of the pupil by assisting his physical, intellectual, moral and emotional development. The creation of a well-educated, healthy young generation imbued with rational progressive outlook on life which is the sole aim of education, cannot at all be compared or assimilated with what may be described as an industrial process.---
16. I am conscious of the observation made by the High Court of Sind and Baluchistan in the case of A. F. Ferguson & Co. v. Sind Labour Court and another that the aforesaid decision of the Suprem6 Court of India was based on the old definition of workman and accordingly distinguished but it may be noted that it was a case of a firm of Chartered Accountants engaged in a profession falling within the meaning of the words ---calling--- and ---occupation--- included in the definition of - --industry---. 1 must say that whatever was said must be deemed to have expressed in that context and the arguments advanced in support of the plea taken in that behalf. The implication with regard to an educational institution was not considered and it was not laid down that any such institution was hit by the definition 'of the term ---industry---. The case was, therefore, decided from a different angle and with different consideration. Furthermore I would like to clarify that the view that I have taken has not been based on the authority of the Supreme Court of India but the extracts from that judgment have been reproduced and adopted with a view to elaborate the aims and objects of a University as distincts from the scheme and purpose of Labour legislation.
17. In the same context I would like to refer to another observation made by the High Court to the effect that the 'service' contemplated by the Ordinance means material service to satisfy the need of the humanity having no relation to spiritual service. Education, though, satisfies the primary need of the humanity but it is a cultural or intellectual service and not a material service like carrier, telephone, telegraph postal, railway, electric, sanitation and similar other activities. It has been aptly laid down that a line has to be drawn between various varieties of service otherwise every service of whatever kind and nature will have to be treated as 'industry'. This would defeat the x very purpose of Labour Laws enacted and amended from the to the in order to meet the situation necessitating such changes with a view to maintain peace and harmony between the employers and employees in the larger interest of the country, as will as to improve the conditions of the working class which had suffered and had been exploited since the immemorial.
18. 1 may also refer to the case of Usmania University v. Industrial Tribunal (1961 PLC 31) wherein it was laid down that cooperation between Labour and Capital being the significant and distinctive test it followed that any edu--cational institution where that cooperation does not exist would not be covered by the definition of the term 'industry'. So it was held that the University was not 'industry' within the meaning of Industrial Disputes Act. In that case following test laid down in the case of Federated State School Teacher's Association of Australia v. State of Victoria (41 C L R 569) was quoted with approval: - ---Testing this case, therefore, by the other suggested criteria or badges of industrialism, can it be said that the education 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 co-operation of capital and labour in any relevant sense, for a great public scheme of education is forced upon the communities of the States by law.---
19. Indeed, the previous view, that profit making was essential to hold an undertaking etc. To be an "industry", has been abandoned and an expression is to be used in an extended sense but all the same its me fining cannot be enlarged to embrace a University which is established with a different object and purpose. Acquisition of knowledge or education as may be termed, has to be placed at higher plane. It will be incongruous to equate education with the kind of service contemplated by the Labour Legislation.
20. In the circumstances I hold that the ---University--- is not an ---industry--- and, therefore, the Union was wrongly registered and is liable to cancellation.
21. Another plea taken on behalf of the Union is that sufficient opportunity was not allowed by the Labour Court to contest the proceedings. There is no force in this contention as it is plain enough from the statement of facts, as narrated at the out-set, that the Union failed to appear before the Labour Court on the date of hearing although an indulgence was shown by the Labour Court on the previous occasion.
22. Lastly, it was urged that the Registrar had earlier filed a similar application and it was dismissed on 12th April 1974. The previous order of the Labour Court had been filed and it shows that it was dismissed for non---prosecution as none on behalf of the Registrar appeared on the date of hearing. The decision was not on merits. So the dismissal of the previous application does not operate as res judicata as has been contended before me on behalf of the Union nor Registrar was debarred from filing a fresh application.