' This petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, laises an interesting question of law as to whether a club can be deemed to be an "industry" within the meaning of Industrial Relations Ordinance, 1969, so as to justify formation and registration of trade union formed by the employees of the club.
2. The background in which this question arises is that the petitioner is the Managing Committee of the Punjab Club which was registered as a Society under the Companies Act, 1913, with the objective of providing social, cultural and recreational facilities like sports and entertainment to its members.
3. On 13th May, 1992, an application under section 22-A(8) read with sections 22-B(3), 15 and 34 of the Industrial Relations Ordinance, 1969, was filed by respondent No,2 claiming to be a union of the employees of Punjab Club against the petitioner. A notice of demand under section 26(1) of the Industrial Relations Ordinance, 1969, was also sent by the President and General Secretary of respondent No,2 to the petitioner. The case of the petitioner is that it was from this application and the notice that it was first time learnt that respondent No,2 has been formed by its employees which has also been registered by the Registrar of Trade Union under section 10 of the Industrial Relations Ordinance, 1969. The petitioner approached respondent No,1 with the request to cancel the registration of respondent No,2 on the grounds mentioned in its letter, dated 21st May, 1992.
However, this request of the petitioner was refused by respondent No,1 which has obliged it to file this Constitutional petition.
4. The contention raised by the learned counsel for the petitioner in support of this petition is that as Punjab Club is not an "Industry" within the meaning of Industrial Relations Ordinance, 1969, its employees cannot form a trade union nor could they said union be registered by the Registrar of Trade Unions.
5. In the written statement filed by the respondent, the plea taken by them is that since Punjab Club is rendering material services to its members, it falls within the definition of "industry" as interpreted by the various Courts and as such respondent No,2 could be registered by the Registrar under the Industrial Relations Ordinance, 1969 as a Trade Union. The services provided by the club have been detailed in para. 8 of the written statement. It was asserted that the club is being run as a business undertaking and is earning profit and, therefore, no possible objection can be raised to the union being registered by the Registrar.
6. I have heard the learned counsel for the petitioner. Unfortunately, although at one stage the learned counsel for respondent No,2 has appeared but thereafter he absented himself and no argument was addressed on behalf of the said respondent by any one. In view of the importance of the question involved. I had called upon Mr. Maqbool Elahi Malik, Advocate-General, Punjab, Mr. Asadullah Siddiqui, Mr. Aftab Ahmad Khan and Mr. M. Asghar Malik, to assist this Court in resolving this controversy. I am grateful for the valuable assistance rendered by them.
7. According to section 5 of the Industrial Relations Ordinance, 1969, a trade union can apply for its registration by making an application in the manner and form provided by section 6. Section 7 ordains that a trade union of the workmen shall not be entitled to registration under the Ordinance unless all its members are actually engaged and are employed in an "industry" to which the trade union is connected. It thus, becomes essential to find out as to whether or not the workers who have formed the trade union are employed in any "industry".
8. Industry \has been defined by section 2(xiv) of the Ordinance as meaning any business, trade, manufacture, calling services, employment or occupation. This definition has been subject-matter of interpretation in various. Cases before different Courts. The leading case, however, is K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others PLD 1976 Lah. 1097, which laid down the tests for determining whether or not an establishment was an "industry". Same view was reiterated in Lahore Development Authority and others v. Abdul Shafiq and others 1992 PLC 1214 and Board of Intermediate and Secondary Education, Gujranwala, through its Chairman v. Registrar of Trade Unions, Gujranwala and another 1993 PLC 475.
9. Mr. Khalid Mahmood Pasha, learned counsel for the petitioner contended that it is only an organization the object of which is to provide material services to the public as a whole or at least a section of the public which qualifies to be an industry. According to the learned counsel, the services being provided by the petitioner/club are restricted strictly to its members, as it cannot be said that the Punjab Club is an industry. It is pointed out that no non-member has the right to be admitted to the premises of the club or to enjoy the service provided by it.
10. All the learned counsel appearing as amicus curiae also took the same view, except Mr. M.
Asghar Malik, Advocate.
11. Mr. M. Asghar Malik, Advocate, who has referred to the definitions of `Industry' as appearing in various enactments in Pakistan and abroad. The learned counsel emphasized that if material services are provided by an organization even to its members, it would be an industry. He maintained that the word 'service' in the context of an industry has wide connotation and has received judicial interpretation. The learned counsel placed heavy reliance on certain decisions from Indian jurisdiction.
12. Mr. Aftab Ahmad Khan, Advocate, has correctly pointed out that the Indian cases are not of much relevance as the definition of 'industry' under the Indian laws is different from that appearing in the Industrial Relations Ordinance, 1969. In this context it may be pointed out that the definition of `industry' as originally enacted in section 2(xiv) of the Industrial Relations Ordinance, 1969, was differently worded and specifically included undertaking. However, by Ordinance XIX of 1970, the definition of 'industry' was substituted and apart from other change word 'undertaking' was specifically deleted. The judgments of the Indian Supreme Court in The Secretary Madras Gymkhana Club Employees Union v. The Management of the Gymkhana Club AIR 1968 SC 554 and Cricket Club of India v. Bombay Labour Union and another AIR 1969 SC 276, proceeded to hold dubs as 'industry' as being an `undertaking'. This reasoning is, however, not applicable in our country after the deletion of word 'undertaking' by amending Ordinance No, XIX of 1970 from the definition of 'industry'.
13. The question as to whether club is an industry was considered by this Court in Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and 2 others 1989 PLC 760, which was a case relating to Rawalpindi Gymkhana, in which it was held to be not an industry as the facilities provided by it were limited to the members of the Club. I am not persuaded to take a different view.
14. In order to resolve the controversy involved in this petition, it is necessary to understand as to what exactly is a club. In Black's Law Dictionary, Fifth Edition at page 232, a club is defined as:-- "A voluntary, incorporated or incorporated association of persons for common purposes of a social, literary, investment, political nature, or the like. Association of persons for promotion of some common object, such as literature, science, politics, good fellowship, etc. Especially one jointly supported and meeting periodically, and membership is usually conferred by ballot and carries privilege of exclusive use of dub quarters, and word also applies to a building apartment or room occupied by a club."
' Similarly, in Ballentine's Law Dictionary, Third Edition at page 211, following definition of club appears:--- "An association or organization of persons who meet together for the purpose of social intercourse or some common object such as the pursuit of literature, science, politics, art, and athletic pursuits or sports, such as swimming, tennis, and golf. United Cerebral Palsy Association v. Zoning Board of Adjustment, 382 Pa. 67, 114 A2d, 331, 52 ALR 2d 1093."
15. Volume 6 American Jurisprudence at page 432, defines club as:-- "The word 'club' has no precise meaning. It derives from the Anglo Saxon 'cicofan', meaning uniting to divide, and usually indicates a division of reckoning. As commonly understood, a 'club' is merely an organization or association of persons who meet or live together for the purpose of social intercourse or some other common object such as the pursuit of literature, science, politics, or good fellowship. Clubs are formed for all sorts of purposes, and there is no uniformity in their constitutions and rules. It is well-known that clubs exist which limit the number of their members and select them with great care, own considerable property, furnish food and drink to the members for money, and afford sleeping quarters and recreational activities as ordinary adjuncts.
' Clubs may be either incorporated or unincorporated, and in this article both kinds are discussed.
Social clubs are . Sometimes organized as corporations, but even when they are created under the statute, their functions, which are intended to be purely social, remain unchanged. They are generally regarded, in morals and in law, as free from condemnation, and even censure, when organized in good faith and conducted in accordance with what was intended by the law-making power of the State in authorizing their incorporation. But where the charter of such an organization is fraudulently obtained for the purpose of evading some law of the state, it will be revoked."
16. In Halsbury's Laws of England (Fourth Edition), Vol. 6, paragraph 201 at page 56, it is stated :-- "A club, except a proprietary club or an investment club, may be defined as a society of persons associated together, not for the purposes of trade, but for social reasons, the promotion of politics, sport, art, science or literature, or for any other lawful purpose; but trading activities will not destroy the nature of a club if they are merely incidental to the club's purposes. The association must be private and have some element of permanence. The purposes for which a club exists may be altered or modified, and there is no rule of law which requires a club to fulfil each and every separate purpose for which it was originally formed. Once the mutual assent of the members has been secured, the doctrine of ultra vires has no place with respect to the activities of such an association.:
17. In Corpus Juris Secundum, Volume 14 at page 1279, club is defined as under:- "A club is a voluntary association of persons for purposes of a social, literary, or political nature, or the like. While the word 'club' has no very definite meaning, it may be defined generally as a voluntary association of persons for purposes of a social, literary, or political nature, or the like. A club is a definite association organized for an indefinite existence; not an ephemeral meeting for a particular occasion, to be lost in a crowd at its dissolution. There are various kinds of clubs. An unincorporated members' club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. An unincorporated proprietary club is one whose property and funds belong to proprietor who usually conducts it with a view to profit; the members, in consideration of the payment by them to the proprietor of entrance fees and subscriptions, are entitled to make such use of the premises and property, and to exercise such other rights and privileges, as the contract between them and the proprietor justifies.
' Beneficial associations generally are considered in the title beneficial association pp.1-86.
Employee's relief and benefit associations are discussed in the C.J.S. Title Master and Servant pp.167-170, also 39 C.J. 247 note 65-p.259 note 26. Unincorporated associations generally are considered in the title Association pp.1-39. According to Words and Phrases Permanent Edition, Volume 7-A club inter alia means:-- `A club is an association of individuals for pleasure or profit. Margin v. State 59 Ala.
34."
18. In the Aiyar's Judicial Dictionary (Eleventh Edition) at page 261, club is defined as:-- "Club, Club-house. Association to which individuals subscribe for purpose of mutual entertainment and convenience. It is not a Company, a partnership or even a collection of co-owners. The affairs of a club are generally conducted by a steward or secretary, who acts under the immediate superintendence of a Committee. The members of a club, merely as such, are not liable for debts incurred by the Committee for work done or goods supplied to the club. The Courts will not ordinarily interfere with the decision of the club expelling a member, if such a decision had been arrived at bona fide and in accordance with the rules of the club. (Comportz v. Cold-ingham 9 Mad. 31-9)."
19. In the Stroud's Judicial Dictionary, Fourth Edition at page 488, following definition of club appears:-- "In Australia the following definition has been given: A club is "a voluntary association of a number of persons meeting together for purposes mainly social, each contributing a certain sum either to a common fund for the benefit of the members or to a particular individual for his own benefit. (per Latham, C.J. In Bennett v. Cooper 76 CLR 570). A club is not a justice entity: See Re Hardy, 48 N.S.W.S.R.
133."
' On an analysis of the above definitions, it will appear that a 'club' is generally understood not as a commercial or industrial organization but is in the nature of a second home to its members. It is especially so in the case of a private club. The income which the club generates is from contributions of its members and is not an outcome of any business activity. The services being rendered by the club are confined to its members and are more in the nature of those which are enjoyed by a person in his own house. No services are rendered by a Club to the public in general or to the community at large or even a section thereof. It is, therefore, difficult to agree with Mr. M.
Asghar Malik, Advocate, that merely because material services are being provided by a club it should be considered as an industry".
20. It stands admitted in the written statement and is evident from the documents filed by the parties that Punjab Club is an association limited by guarantee and was originally registered under section 36 of Act,' 1887. According to Memorandum and Articles of Association, the facilities provided by the club are restricted to its members. The membership is regulated by the provisions contained in the Articles of Association, which would show that the club is in the nature of a private club and the rights of admission to which are reserved.
21. It emerges from the foregoing discussion that Punjab Club cannot be regarded to be an "industry" within the meaning of Industrial Relations Ordinance, 1969, and as such trade union formed by its employees did not qualify for registration, in view of section 7(2) of the Industrial Relations Ordinance, 1969.
' For the reasons aforesaid, this petition is allowed and the registration of respondent No,2 as a trade union is declared without lawful authority and of no legal effect.
' There shall be no orders as to costs.