' The facts relevant for the decision of this writ petition are that the petitioner No, 1 is a Cooperative Society, registered under the Cooperative Societies Act, 1925 while respondent No, 2 joined its service as Clerk on 10-10-1958 and he was retired from service vide office order dated 13-2-1984 with effect from 15-2-1984 in exercise of its powers under rule 61(1), of the Cooperative Model Town Society (1962) Limited Employees Service Rules, 1969, hereinafter to be referred to as 'Service Rules of 1969'. The employee served the society, with a grievance notice and thereafter proceeded to file the grievance petition before the Punjab Labour Court. The petitioners contested the petition. The Labour Court after recording evidence and hearing arguments dismissed the petition vide order dated 16-4-1985, which was assailed by the workmen through an appeal before respondent No, 1.
The appeal was accepted vide order dated 14-4-1986. The result was that the grievance petition of the workmen was allowed. Now the present petition, which was admitted to hearing and notices were issued to the respondents. Respondent No, 2 alone has appeared while respondent No, 1 was proceeded ex parte.
2. The learned counsel for the petitioners argued that the Labour Court and the Tribunal, respondent No, 1, have no jurisdiction to entertain and decide the grievance petition of the workmen. In this behalf the learned counsel has referred to sections 54 and 70-A of the Cooperative Societies Act, 1925. It is added that the matter was not covered by I.R.O. Because it applies only to 'workmen' employed in commercial and industrial organizations, whereas the petitioner society is neither an 'industry' nor a 'commercial organization'. The learned counsel in this behalf has referred to the aims and objects as well as bye-laws of the petitioner society to show that its main object is to look after the needs of its members. The learned counsel in this behalf has referred to the case of Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No, 2, Lahore and another (PLD 1976 Lah. 1085). It is added that the petitioner society caters for the needs of its members and if function are taken into consideration then the same' has resemblance to Local Bodies and not to industrial or commercial organisation. The learned counsel in this behalf had referred to the judgments reported as Pakistan National Centre through its Chairman v. Presiding Officer, Punjab Labour Court No, 2, Lahore etc. (PLD 1976 Lah. 1085), Muhammad Dawood v,. Mayor, Karachi Metropolitan Corporation (1981 PLC Labour 879), Dr. Muhammad Nasim Javed v. Lahore Cantonment Housing Society Ltd. Through the Secretary, Fortress Stadium, Lahore Cantt. Etc. (PLD 1983 Lahore 552). It is argued that the retirement of employee is covered by the 'business of the society', therefore, section 70-A was fully attracted. In this behalf the learned counsel has relied on the case of Afzal Hussain Syed v. Government of Punjab and another (PLD 1980 Lah. 697). The order of retirement was legal and normal. The learned counsel in this behalf has referred to section 12(2) of the Punjab Civil Servants Act, 1974. It is maintained that the rule 61 is paramateria to this section.
' The last argument is that respondent No, 2 was not an aggrieved person as neither he was dismissed nor discharged nor removed nor his services were terminated, therefore, he could not maintain the grievance petition. It is added that the retirement on completion of 25 years service qualifying for pension was not to immediately follow but it could be ordered any time after completion of 25 years service. In this behalf reliance has placed in the case of Afzal Hussain Syed (supra).
3. On the other hand, the learned counsel for the respondent No, 2 argued that the impugned order of retirement although dated 13-2-1984 yet was delivered to the petitioner on 16-2-1984 while the petitioner had completed 25 years service on 9-10-1983. It was, therefore, argued that the action could not have been taken under rule 61(i) after the date when the employee completed 25 years service. It is explained that if the employee is allowed to continue after completion of 25 years service it would follow that he is still fit for job. In that case his retirement would be governd by second part of rule 61 and not by the first part. It is added that once the material date passed without any action the society was left with no discretion, whatsoever, in the matter. It is added that the action is clearly mala fide and fraud on statute. It amounts to compulsory retirement under rule 14(e), which is major penalty and cannot be ordered without proper disciplinary proceedings. The respondent No, 2 being a confirmed employee having not been retired on 9-101983, when he completed 25 years service, would continue in service in accordance with rule 61(ii) till he attains the age of 60 years. It is maintained that neither the petitioner was heard nor served with a show- cause notice before sending him home. In this behalf the learned counsel has referred to the judgments reported as Ch. Mian Khan v. Director-General, Telegraph and Telephones, Islamabad (1986 SCMR 1107) and Muhammad Ikramullah v. Secretary, Establishment Division, Government of Pakistan and 2 others (1984 PLC (C.S.) 360).
' The learned counsel for the contesting respondent argued that the Labour Court had the jurisdiction in the matter because the grievance of the employee was not covered under section 54 of the Cooperative Societies Act, 1925 and for that reason the bar of jurisdiction, as contained in section 70-A of the Act, 1925, could not block his way. It is added that the petitioner society is a commercial/business organisation as is evident from its bye-laws particularly clause 5(b), (c), (d) and (1). It is added that it is clear from the statements of P.W.1 and R.W.1 that the activities of the petitioner society are those of a commercial organisation. It is added that the bar of jurisdiction is not attracted to the service matters. In this behalf the learned counsel has referred to the judgments reported as Ch. Nazir Ahmad v. Agha Ahmad Raza Khan and 2 others (1971 SCMR 305 and Project Director, Cooperative Karkhana Alat-eZari, Bahawalpur, etc. v. Presiding Officer, Punjab Labour Court No, 4, Multan and 6 others (PLD 1979 Baghadad-ul-Jadid 1).
4. I have given my anxious consideration to the argument of the learned counsel for the parties and gone through the relevant provisions of statute and rules as well as precedent cases.
Foremost question for the determination is whether the grievance petition was barred and the Labour Court had no jurisdiction? These objections on behalf of the petitioner were based on sections 54 and 70-A of the Cooperative Societies Act, 1925, therefore, it is worthwhile to reproduce the same as under:- "54--Arbitration.---If any dispute touching the business of a society other than a dispute regarding disciplinary action taken by the society or its committee against a paid servant of the society arises--
(a) between members or past members of the society or person claiming through a member or past member, or
(b) between members or past members or persons so claiming and any past or present officer, agent or servant of the society, or
(c) between the society or its committee, and past or present member of the society, or
(d) between the society or its committee, and any past or present officei, agent or servant of the society, or a surety of such officer, agent or servant, whether such surety is or is not a member of the society, or
(e) between a financing bank authorised under subsection (1) of section 34 and a person who is not a member of a society, ' it shall be referred to the Registrar for decision by himself or his nominee, or if either of the parties so desires, to arbitration of three arbitrators who shall be the Registrar or his nominee and two persons of whom one shall be nominated by each of the parties concerned.
' A dispute shall include the question whether a person is or was a member of a society and also claims by a society for debts or demands due to it from a member, past member or non-member or the heirs or assets of a past member or non-member whether such debts or demands be admitted or not: ' Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tired by a regular suit, instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section."
"70-A. Bar of jurisdiction.---(1) Notwithstanding anything provided in any other law for the time being in force but save as expressly provided in this Act--
(f) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a cooperative bank or any other person is empowered by or under this Act, or the rules or bye-laws framed thereunder, to dispose of or to determine;
(g) the validity of anything done or an order passed by the Provincial Government, a society, a financing bank, a cooperative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and bye-laws framed thereunder, shall not be called in question in any manner whatever before or by any Court or other authority whatsoever; and
(h) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye-laws framed thereunder before the Provincial Government, a society, a financing bank, a cooperative bank, the Registrar or any other person referred in clause (a).
(2) The provisions of subsection (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Cooperative Societies (Amendment) Ordinance, 1966, comes into force and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in subsection (1), shall stand vacated and be without any force."
' It is clear from bare reading of section 54 that the jurisdiction of the Courts and the Tribunals is barred in respect of all the matters 'touching business of the society'. The terms business of the society has not been defined in Act, 1925 but the same has been interpreted in the case of Ch. Nazir Ahmad (supra). The Hon'ble Supreme Court held that the service matters of employees are not referable to arbitration as these are not 'dispute touching the business of the society' under section 54 of Act, 1925. The same was the view of the Quetta and Sindh High Courts as is clear from the case of Muhammad Iqbal and J.J. Miranda v. Fishermen Cooperative Society, Karachi etc. (PLD 1978 Kar. 990), therefore, it is held that the matter of retirement of respondent No, 2 from its service was not covered by section 54 of the. Act, therefore, the jurisdiction of the Labour Court was not barred under section 70-A of the Cooperative Societies Act, 1925.
5. Now coming to the other legal argument that since the petitioner society was established only to cater for the needs of its members. The society in its functioning resembled to a local body and by no stretch of imagination can be called a commercial or industrial organisation, therefore, the grievance petition under section 25-A of the I.R.O. Was not competent. The learned counsel for the petitioners as well as the workman both have referred to the bye-laws of the society especially to bye-law No, 4 dealing with the objects. The same reads as under:-- ' Objects: " The objects of the Society are to promote the economic and social interest of its members and more particularly to lay out, establish and maintain a garden town."
' Thereafter, reference was made by them to functions particularly clauses (b) to (d). The same reads as under:-- ' Functions: (i)
(j) to bring into existence construct, manage and maintain works, services and institutions or various kinds for the convenience and benefit of members residing in the town;
(k) to sell, mortgage or lease land, houses, house sites and all other properties, movable or immovable, as may be necessary for the carrying out of any of the objects of the society;
(l) to construct residential houses and other buildings for private and public use and to provide amenities such as schools, hospitals, parks and playground for the convenience of members."
' Before proceedings any further it is relevant to refer the definition of `Workmen' as appearing in section 2(xxviii), which reads as under:- "'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--
(m) who is employed mainly in a managerial or administrative capacity, or
(n) 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."
' It is clear from the above definition that it includes persons employed in an establishment or industry, therefore, the definition of 'Establishment' becomes relevant. The same appears in clause
(ix) and section 2, which reads as under:-- "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 22-EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments."
' While 'industry' has been defined in clause (xiv) of the same section and reads as under: "Industry means any business, trade, manufacture, calling, service, employment or occupation."
Now if the above definitions are read with preamble of I.R.O. Then it becomes clear that the object/pursuit of the employer is immaterial. The only important thing is employment of persons for carrying out its aims and objects. The definition is wide and takes into folds all sorts of employment. I am fortified in my view by the provision of section 1(3), which provides and it shall not apply to categories of employees mentioned in clauses A to H and subsection (3-A). If the argument advanced on behalf of the petitioners was correct then these categories already stood excluded from the purview of the I.R.O. And there was no point in once again excluding them. On the other hand, this proves that the Legislature wanted to extend the cover- of I.R.O. To all sorts of workers. I am fortified in my view by the judgment of the Hon'ble Supreme Court reported as Don Basco High School v. Asstt. Director, E.O.B.I. (PLD 1989 SC 128).
6. This is not all. Even the term 'Industry' amongst others includes `Service'. If looked from this angle the petitioner society would be covered even by the term :industry', while the definition of 'Establishment' open with the words means any office, etc. The society cannot be, at least excluded, from office and the other important ingredient employment of workmen. The definition of 'Workmen' as already noted means any person employed in an establishment or industry for hire or reward, therefore, it is concluded that the provisions of I.R.O. Are applicable to the workmen employed by the petitioner society.
7. This brings as to rule 61 of the Cooperative Model Town Society (1962) Ltd. Employees Service Rules, 1969. This rule was added on 24-10-1983. The same reads as under:-- "An employee of the society shall retire from service:--
(i) After he has completed twenty five years' service qualifying for pension or other retirement benefits, as the competent authority may direct; or ' When no such direction is given under Rule (i) on the completion of sixtieth years of age."
' The rule is practically reproduction of section 12(2) of the Civil Servant Act perhaps for the reason that at the relevant time a bureaucrat was the administrator of the society. The section 12(2) of the Civil Servant Act, 1974 and the similar provisions in other enactment were examined by the Shariat Court and then by the Shariat Bench of the Hon'ble Supreme Court in the case titled ' Pakistan v.
Public-at-large (PLD 1987 SC 304). The vires came into consideration and it was observed as under:-- "In the light of this brief discussion of the few Quranic Injunctions and in view of what punishment, deprivation and disgrace a civil servant suffers by application of impugned law, can it be said that the Quranic Justice visualised above would be satisfied without notice and without affording an opportunity of defence against such an action. The answer is in the negative."
' It was concluded that the impugned provision of law as they stood at the relevant time were against the injunctions of Islam as contained in Qur'an and Sunnah. Then proviso was added to section 12 iri the light of the rule laid down by the Hon'ble Supreme Court. The same now reads as under:-- "12 * * * * * * * * * * * ' Provided that no order under clause (1) shall be made in respect of a civil servant unless the competent Authority has informed him in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against him".
' But unfortunately nobody bothered about the rule 61 of rules, 1969. This is not all. Respondent No, 2 clearly alleged that the action was mala fide and manoeuvred by the Deputy Administrator of the petitioner society but the said official did not enter into witness-box to controvert the allegations while R.W. 1 simply showed lack of knowledge about the of the Deputy Administrator towards respondent No,
2. The action was proved mala fide. The learned counsel for the respondent No, 2 rightly referred to the case of Muhammad Ikramullah (supra) and argued that mala fide act stands on the same footing as act without jurisdiction. There is also merit in the argument that the respondent No, 2 completed 25 years of service entitled him to pension on 9th October, 1983 while his services were terminated on 13-2-1984. There is nothing on record to show that the action was in process, therefore, this also tends to prove that the whole exercise was mala fide.
8. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed with costs.