SAIDUZZAMAN SIDDIQUI, J.---The abovementioned to appeals with the leave of this Court are filed by the Agricultural Workers' Union, Quetta, and Quetta Municipal Corporation Employees' Union, Quetta, to call in question the judgments of to different Division Benches of High Court of Baluchistan dated 31-8-1994 and 10-10-1994 respectively. The leave granting order in both the appeals is common. However, after hearing the learned counsel for the parties, we are of the view that it will be appropriate to dispose of these appeals separately. Leave has been granted in the above appeals to consider the following legal proposition:-- "The learned Judges of Division Bench while allowing the writ petition filed by respondent No. l relied on an unreported decision of this Court passed in Civil Petition No.66-Q of 1992 and others, wherein it was held that the Vetenary Assistants, Stock Assistants and Technical Staff of Livestock Department could not be said to be persons engaged in the running of an industry and as such they were not entitled to get themselves registered as a Trade Union of workers. The learned counsel for the petitioner has relied on a subsequent decision of this Court by a larger Bench dated 29-6-1994 (C. As. 48-Q to 67-Q/93) wherein after taking into consideration the definition of 'workman' given in the I.R:O, it was held that the persons connected with the construction or maintenance work of buildings, employed in P.W.D., cannot be treated as persons employed in the administration of the State and therefore, such persons are entitled to form a Trade Union under I.R.O. The learned counsel, accordingly, contended that although in the judgment delivered in C.P.
No.66-Q of 1992 and others, this Court held that the employees of the Department of Agriculture do not fall within the definition of 'employees of an industry' but the definition of 'workman' as given in the I.R.O., which has an important bearing on the matter was not considered. It is also contended by the learned counsel that in view of the subsequent decision of this Court in the case of Executive Engineer, P.W.D v. Abdul Aziz and others (C.A. 48-Q and others of 1993) decided, by a larger Bench of this Court the petitioners were entitled to get themselves registered as a Trade Union under I.R.O.
The contentions of the learned counsel need further examination and we, accordingly, grant leave to appeal in the above case."
Civil Appeal No. 889 of 1994 This appeal arises out of the judgment of a learned Division Bench of High Court of Baluchistan dated 31-8-1994, whereby C.P. No.156/94, filed by respondent No. 1 to call in question the order of respondent No.2 dated 24-5-1994, was allowed and the order of respondent No. l declining to register the appellants as a trade union of workers under the provisions of Industrial Relations Ordinance, 1979 (hereinafter to be called as the 'Ordinance' only), was upheld. The background of controversy in this appeal may be stated as follows: Persons employed as Beldars, Palaydars, Malis, tractor cleaners, vehicle drivers, storekeepers, budders, crop reperters, tractor drivers etc. Formed a trade union of workers under the name and style of appellants and got it registered under the Ordinance on 3rd of June, 1984. Government of Baluchistan feeling aggrieved by the registration of appellants as a trade union, filed C.P. No.90/92, challenging the registration of appellants as a trade union under the Ordinance. A learned Division Bench of High Court of Baluchistan relying on an earlier pronouncement of that Court in C.P.
No.60/1985, allowed C.P. No.90/1992 filed by the Government of Baluchistan and held that respondent No. l while accepting the application of appellants for registration as a trade union neither applied its mind on the question whether the members of the appellants' union fell within the category of worker or workmen as defined in the Factories Act, 1934 or the Workmen's Compensation Act, 1923 nor it issued notices to the concerned Government Department before granting registration to the appellants as a trade union under the Ordinance. However, while allowing C.P. No.90/1992 and declaring the registration of appellants' union under the Ordinance as without lawful authority and of no legal effect for the above-stated reasons, the learned Judges made the following further observations in that case:-- "However, it may be observed that those employees of the said Government Departments, who consider themselves to fall within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923 may apply afresh before appropriate forums who shall before passing any order on the same determine whether they in fact fall within the category of worker/workman as defined in the Factories Act, 1934 or Workmen's Compensation. Act, 1923 and then alone shall be competent to pass orders in accordance with law. In that even it would be necessary to issue notice to the Government/employer in order to furnish details of the nature of work or to place other necessary and relevant information regarding the duties being performed or salaries being drawn by such employees. "
2. The appellants challenged the above decision of Baluchistan High Court before this Court in C.P.L.A. No.67-Q of 1992 which was heard alongwith C.P.L.A. No.66-Q of 1992 and 74-Q of 1992 filed by Livestock Employees' Union and Forest Employees and Workers' Union respectively, but leave to appeal was refused in all the abovementioned three petitions by a common order dated 7-10-1992.
After disposal of the leave petitions by this Court, the appellants approached respondent No.1 for granting them registration as a trade union of workers under the Ordinance in the light of the observations made by the High Court of Baluchistan in C. P. No.90/1992. Respondent No. l by order dated 21-7-1993 declined to register the appellants as a Trade Union on the ground that the observations made by the High Court of Baluchistan in its judgment dated 14-7-1992, while disposing of C.P. No.90/1992 stood superseded by the decision of this Court dated 7-10-1992 in C.P.
No.66-Q of 1992, 67-Q of 1992 and 74-Q of 1992. The appellants challenged the decision of respondent No. l before respondent No.2 in an appeal which was allowed and case was remanded to respondent No. l for decision afresh in the light of the observations of High Court in C.P.
No.90/1992 dated 14-7-1992. Respondent No. l challenged the decision of respondent No.2 dated 24-5-1994 in Constitution Petition No.156/1996 before the High Court of Baluchistan which was accepted and decisions of respondent No. I declining registration of appellants as a Trade Union of Workers under the Ordinance was upheld by the impugned judgment which gave rise to the present appeal.
3. In support of the above appeal, Mr. M.L. Shahani, the learned counsel for the appellants contended that whether the nature of duties performed by the members of the appellants' Union fell within the scope of definition of 'worker' or 'workman' as defined in the Ordinance was a question of fact which the respondent No. l was bound to decide in the light of the observations of the High Court in C.P. No.90/1992. In reply to the query raised by the Court whether the provisions of the Ordinance applied to the employees of Agricultural Department in view of the provisions of section 1(3) (b) of the Ordinance, the learned counsel very vehemently argued that persons performing manuat work like Beldar, Palaydars, Malls, tractor cleaners, vehicles drivers, storekeepers, tractor drivers, fitters, mechanics, film van drivers-cum-operators, crop reporters etc. Cannot be treated as persons performing functions in connection with the administration of State and as such they were entitled to form a trade union and get the same registered under the provisions of the Ordinance. It is contended by the learned counsel, that only those employees in the Government Department, who are performing duties which have some connection or nexus with the sovereign functions of the State, would fall within the mischief of expression "employed in the administration of the State". To support his contention that only persons connected with the performance of sovereign functions of the State, will be covered by the expression 'persons employed in the administration of State', the learned counsel relied on the following decision:--
(i) General Secretary, Provincial Buildings Employees' Union, Hyderabad v. Executive Engineer, Provincial Buildings Division and another (1972 PLC 275);
(ii) Employees' Old-Age Benefits Institution v. N.I.R.C. (1988 SCMR 765); (i.e) Project Director, Karkhana Alaat-e-Zari, Bahawalpur v. Presiding Officer, Punjab Labour Court and 2 others (PLD 1989 SC 152);
(iv) Controller, Stationery and Forms, Government of Pakistan v. Registrar, Trade Unions, Sind and others (PLD 1991 SC 353) and Faqir Muhammad v. Director of National Savings, Multan Region, Multan (PLD 1992 SC 127).
4. The learned counsel for the respondents on the other hand contended that the question, whether the members of the appellants' Union were employed in the administration of State need not be decided in the present proceedings as neither in the 1st round of litigation which ended with the order of this Court dated 7-10-1992 nor in the 2nd round of litigation which culminated in the present appeal, this controversy was raised or decided by any forum. The learned counsel, however, contended that in view of the decision of this Court dated 7-10-1992 disposing of the leave petition of appellants, against the judgment of High Court of Baluchistan dated 14-7-1992 in C.P. No.90/1992, the appellants were precluded from raising the contention that they were entitled to seek registration as a Trade Union of Workers under the provisions of the Ordinance. The learned counsel specifically relied on the following observations of this Court in C.P.L.A. No.67-Q/1992:-- "21. In the instant case, the primary object of the departments is to implore all avenues for the advancement of a particular field and to cater the needs of public at large. The cost is to be borne from public funds. They do not run any industry. The function of the Forest Department is to protect the forests from destruction which is necessary for the healthy environment. For the performance of their duties, they make research in their special field. From the nature of their work it cannot be deduced by any stretch of imagination that the respondents are running any industry. Whatever little business is done that is ancillary to the main object. The departments are performing multifarious duties in this behalf but their main function is not changed. The petitioners are not employed to run .Any industry. The Government is not consuming any wealth from these establishments. The ingredients of an industry are lacking in the present case, therefore, the learned High Court has taken a correct view of the matter. "
The contention of learned counsel for the respondent that the question that the members of the appellants were engaged in the administration of State was not raised in the earlier round of litigation, therefore, it need not be decided now, does not appear to be correct. This contention was specifically raised before the High Court in C.P. No.90/1992 filed by Government of Baluchistan against the appellants and respondent No.1 but it was not accepted for the following reasons:-- "12. Counsel for the petitioners mainly urged that the members of respondent unions are performing their duties in the Administration of State hence provisions of I.R.O. Do not apply to them in view of section 1(3) (b) of the I.R.O. On the other hand relying on the case of Faqir Muhammad v.
Director of National Savings, Multan Region, (PLD 1992 SC 127) learned counsel for the unions contended that the majority view of the Supreme Court on the subject is that the expression 'Administration of State' should be interpreted in--limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or conducting or carrying on the details of the Government. It, however, should not be extended to cover those employees of the State who are workers and perform duties which should not be covered by expression 'Administration of State' like Malis, Chowkidars, Budders, Beldars, Tubewell Machanics, Drivers etc.
13. We have thoroughly gone through the said judgment. There was difference of opinion regarding interpretation of "Administration of State". However, the Referee Judge of the Hon'ble Supreme Court on page 143 of the said judgment concluded as under:- Following the test laid down in this judgment I am inclined to agree with my learned brother that the appellant, being a Chowkidar in a directorate concerned with mobilizing savings in the country, can hardly be described as a person employed in the administration of State'.
It is worth to mention here that this proposition had already come before the Supreme Court in the case of Employees' Old-Age Benefit Institution v. N.I.R.C. (1988 SCMR 765) where following conclusion was drawn:-- The expression 'administration of the State' is to be interpreted in a limited and narrow sense of the practical management and direction of the executive machinery or the operation of the various organs of the sovereign or the conducting or carrying on the details of the Government.'
14. Likewise in Constitutional Petition No. 192 of 1991 a Division Bench of this Court while following the -aforesaid ratio decidendi dismissed a petition wherein it was contended that the petitioner factory had been set up as subsidiary of Shaheen Foundation Pakistan Air Force and beneficiaries there from are persons connected with or incidental to Pakistan Air Force. It was argued that by virtue of section 1(3)(b) of I.R.O. Petitioner-factory was exempted from the application of I.R.O.
15. In view of the aforesaid authorities we see no reason to place a different and separate interpretation to the term "administration of State'."
Neither Government of Baluchistan nor respondent No. 1, herein, challenged the above findings of High Court in CP 90/1992, any further and therefore, as against them these findings acquired finality. '1 `he other ground on which the Government of Baluchistan, which was petitioner in C.P.
No.90/1992, assailed the registration of appellants as a Trade Union under the Ordinance was, that members of appellants being Government servants, they could not form a Trade Union. This contention to was repelled by the learned High Court in view of the definition of 'civil servant' given in section 2(b) of the Civil Servants Act, 1973. It is not disputed before us that the learned Judges of the Division Bench of the High Court of Baluchistan, while disposing of C.P. No. 90/1992, left it open for the appellants to apply afresh for registration as a Trade Union of Workers under the Ordinance if its members, though in the employment of Government, were covered by the definition of 'worker' or 'workman' as given in the Factories Act, 1934 and Workmen's Compensation Act, 1923. No doubt this Court rejected the petition for leave to appeal filed by the appellants against the judgment of High Court of Baluchistan in C.P. 90/1992 but the observations referred to above were neither set aside nor interfered with by this Court while declining leave to appeal.
5. In view of the preceding discussion, we are of the opinion that respondent No.1 was not justified in declining to entertain the request of appellants for registration as a Trade Union on account of the order of this Court dated 7-10-1992 declining leave to appeal against the order of High Court dated 14-7-1992 on the petition of the appellants. As pointed out by us earlier, the observation of the learned High Court of Baluchistan in C.P. 90/1992 which left open to the appellants to approach afresh to respondent No.1 for their registration as a Trade Union under the Ordinance if they could satisfy respondent No.1 that their members though employed in a Government department, fell within the category of worker/workman as defined in the Factories Act, 1934 and Workmen's Compensation Act, 1923, was neither interfered with not set aside and therefore, the respondent No.1 ought to have held enquiry in the light of observations of the High Court to determine whether, the appellants qualified for registration as a Trade Union or not.
6. We, accordingly, allow the appeal, set aside the impugned order of the High Court and remand the case to respondent No. l for disposal in accordance with the law. In the circumstances of the case, we will make no order as to costs.
CA 532/1995
7. This appeal was arisen from the judgment of a learned Division Bench of Baluchistan High Court dated 10-10-1994, passed in Constitution Petition No. 191/1994 ' and 192/1994, filed by respondents Nos. l and 2 herein respectively. Facts relevant for disposal of this appeal are as follows.
8. Appellants were registered as a Trade Union of Workers on 4-7-1983. They were also declared collective bargaining agent in respect of the establishment of respondent No. 1. It appears that respondent No. 3 in January, 1994 applied to respondent No.2 for its registration a Trade Union of Workers of respondent No.1. This application was declined by respondent No.2, whereupon respondent No.3 approached respondent No.4 through an appeal. Respondent No. 4 accepted the appeal of respondent No.3 by order dated 24-5-1994 and remanded the case to respondent No.2 for a fresh decision on the application of respondent No.3 in accordance with the law. This order of respondent No.4 led to the filing of to Constitutional Petitions in the High Court of Baluchistan, one by respondent No. l (C. P. 191/94) and the other by respondent No.2 (C.P. 192/1994). In Constitution petition filed by respondent No. 1, (C. P. 191/1994) not only the order of respondent No. 2 dated 24-5- 1994 remanding the case of respondent No.3 to respondent No.2 for a fresh decision in accordance with the law but the registration of appellants as a Trade Union of Workers in 1983 was also challenged. Respondent No.2 in its Constitution Petition (C.P. 192/1994), however, only challenged the order of respondent No.4 dated 24-5-1994. A learned Division Bench of Baluchistan High Court by judgment dated 10-10-1994, accepted both the Constitution Petitions and declared the order of respondent No.4 dated 24-5-1994 as without lawful authority and of no legal effect and also quashed the registration of appellants as Trade Union of Workers under the provisions of I.R.O.
Which led to the filing of above appeal.
9. In support of the appeal they teamed counsel for the appellants contended that the registration of appellants as a Trade Union of Workers was wrongly declared by the High Court as illegal as the employees of Quetta Municipal Corporation who were members of the appellants' Union, were covered by the definition of 'worker' or 'workman' given in the I. R.O. The learned counsel for the respondent on the other hand supported the judgment of High Court.
10. I may mention here that the appellants have questioned the impugned judgment in the above appeal only to the extent it declared the registration of appellants as a Trade Union of Workers under I.R.O. As without lawful authority and of no legal' effect. The impugned judgment of High Court is so far it set aside the order of respondent No.4 dated 24-5-1994 passed on the appeal of respondent No.3, has not been challenged before us by respondent No.3. I will, therefore, confine my consideration in this appeal only to the question whether the learned Judges of the High Court were justified in declaring the registration of appellants as a Trade Union of Workers under the provisions of I.R.O. Without lawful authority and of no legal effect.
11. The learned Judges of the High Court, though came to the conclusion that the employees of respondent No. l were not engaged in the administration of State and, therefore, it could not be argued that provisions of I.R.O. Did not apply to them, but held that they were not entitled to form a Trade Union of Workers under the provision of the I.R.O. As they were neither 'worker' nor workman', and respondent No. l was not a 'establishment' or an 'industry', as defined in the I.R.O. The learned Judges in support of their conclusion referred to the following cases:--
(i) K.G. Old, Principal, Chiristian Technical Training Centre v. Presiding Officer, Punjab Labour Court (PLD 1976 Lahore 1097).
(ii) A.F. Ferguson v. The Sind Labour Court (PLD 1985 SC 429).
(i.e) Employees' Union, Jamia Karachi v. Registrar of Trade Unions, Sind 1981 PLC 403).
(iv) Government of Baluchistan v. Livestock Employees' Union, Baluchistan (1993 PLC 13).
12. The learned Judges did not agree with the dictum laid down in the case of Management of Municipal Committee, Mianwali v. The General Secretary, Municipal Muharris, Union and another (PLD 1968 Lahore 395) cited by the appellants, in view of the law laid down by this Court in the case of A.F. Farguson (supra). The learned Judges also distinguished the case of Liaquat National Hospital v. Government of Sind (PLD 1977 Karachi 843), Sind Road Transport Corporation v. Staff Union (1975 PLC 361), Punjab Small Industries Corporation v. Punjab Labour Appellate Tribunal, Lahore (1988 SCMR 1725) and Employees' Old-Age Benefits Institution v. National Industrial Relations Commission (1988 SCMR 765).
13. Section 3(72) of Baluchistan Local Government Ordinance (lI of 1980) defines 'worker' for the purpose of that Ordinance as follows:-- "(72) 'Worker'--
(a) 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 proceeding under the Industrial Relations Ordinance, 1969 in relation to an industrial dispute, includes a person who has been dismissed, discharged, retrenched, laid of or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay of or removal has led to that dispute but does not include any person--
(i) who is employed in a managerial or administrative capacity; or
(ii) who, being employed in a supervisory capacity draws wages exceeding eight hundred rupees 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;
(b) and includes self-employed craftsman like blacksmiths, carpenters, tailors and shoe-makers;"
14. Sub-clause (a)(i) and (ii) of the above definition of worker in Ordinance II of 1980 is a verbatim reproduction of the definition of 'worker' and 'workman' given in the I.R.O. And sub-clause (b) ibid has further added self-employed craftsman like blacksmiths, carpenters, tailors and shoe-makers in the category of workers contemplated under Ordinance II of 1980. Therefore, it is not correct to contend that all the employees of Quetta Municipal Committee were outside the purview of the definition of 'workers' as given in the I.R.O. The fact that in the Ordinance II of 1980, the definition of worker was the same as given in the I.R.O. Goes to show that certain categories of employees of Local Government constituted under Ordinance II of 1980 belonged to the category of workers as defined in the I.R.O.
15. The learned Judges of the High Court declared the registration of appellants as a Trade Union of Workers under the provisions of I.R.O. Without lawful authority and of no legal effect mainly on the consideration that Quetta Municipal Corporation was not an industry as defined in the I. R.O. And therefore, its employees (members of appellants) were not covered by the definition of 'worker' or 'workman' given in the I.R.O. The learned Judges in support of their conclusion relied on the case of K.G. Old v Presiding Officer, Punjab Labour Court, decided by a learned Single Judge of Lahore High Court which was quoted with approval by a learned Division Bench of Sind High Court in the case of Employees' Union of Jamia Karachi. According to learned Judges of High Court of Baluchistan, both the above-noted cases were approved by this Court in the case of A.F. Ferguson v. The Sind Labour Court.
16. I will here first examine the decision of this Court in the case of A.F. Ferguson & Co. v. Sind Labour Court which according to learned Judges of the High Court of Baluchistan approved the decisions in K.G. Old and Employees' Union of Jamia Karachi. The following passage from A.F. Ferguson's case was quoted by the learned Judges in the impugned judgment to show that that ratio in K.G. Old.
And Employees' Union of Jamia Karachi was approved by this Court:-- "We observe that after the above judgment was delivered, the Lahore High Court as well as a Bench of the Sind High Court has dissented from the view taken by the learned Judges that the dictionary meaning was to be given to the words mentioned in clause (xiv) of section 2 of the Ordinance and that its amplitude could not be curtailed by reference to the old definition of the word 'industry'. In K.G. Old. v. Presiding Officer, Punjab Labour Court and others PLD 1976 Lah. 1097 Mr. Justice Shafiur Rahman (now a Judge of this Court) in an exhaustive and detailed judgment, after noticing all the relevant case-law including the judgment in the present case, took the view that the 'use of the expressions 'Business, Trade, Manufacture, Calling, Service, Employment or Occupation' in the definition of industry in Industrial Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning'. He went on to add that 'in the context of industrial and labour laws, these expressions apply to any enterprise which is organised 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 service. In this view the words calling, service, employment or occupation were not to be understood or interpreted in their plain dictionary meaning but took their colour from the opening words, namely, Business, Trade and Manufacture and the meaning of these words had to be controlled with reference to the preceding words in the definition and the objects of the statute.
This view was followed by one of us (Nasim Hasan Shah, J.) while sitting in Lahore High Court in Pakistan Central Cotton Committee, Karachi v. Presiding Officer, Punjab Labour Court No.3, Lyallpur etc. (Writ Petition No.74 of 1976). And before us, it was further submitted that the distinction between learned professions on the one hand and business/trade/manufacture, on the other was so fundamental and the concept of the to so utterly inconsistent that the same could not be abolished merely by the use of general words like calling, service, employment or occupation.
Again, a Bench of Sind High Court consisting of Mr. Justice Zaffar Hussain Mirza (now a Judge of this Court) and Mr. Justice Salim Akhtar in the case of Employees' Union, Jamia Karachi v. Registrar of Trade Unions, Sind and others 1981 PLC 403, also appears to have followed the view taken by the Lahore High Court in K.G. Old's case rather than that expressed in the present case so far as the definition of 'industry' is concerned.
We also observe that of the three points raised in this case before the learned Judges of the High Court, namely:--
(i) that the appellant-firm was not an industry within the meaning of the Ordinance;
(ii) that the respondent No.2 had no locus standi to raise and maintain an industrial dispute as required under the Ordinance; and (i.e) 4that respondent No.2 was not qualified as a Collective Bargaining Agent. "
The High Court only decided the first point definitively holding that the appellant-firm did not constitute an industry within the meaning of the Ordinance. However, as regards the second point, though it was held that respondent No.2 had a locus standi to raise the dispute because the appellant-firm had failed to establish before the High Court that the second respondent's registration as a profession was illegal in view of section 7(2) of the Ordinance but the appellant- firm was allowed to raise this objection before the Labour Court in the light of further evidence, if so advised. However, it entirely refused to entertain and decide the third question, namely, that respondent No.2 was not qualified as Collective Bargaining Agent on the ground that this question could not be decided in the Constitutional jurisdiction of the High Court."
17. From the above-quoted observations it does not appear that ratio decidendi in the cases of K.G.
Old and Employees' Union of Jamia Karachi were approved by this Court. The cases of K.G. Old and Employees' Union of Jamia Karachi, were referred by this Court in A.F. Ferguson's case only to show that the view expressed in A.F. Ferguson's case was not followed in K.G. Old and in Employees' Union of Jamia Karachi. It may be mentioned here that the decision by the learned Division Bench of Sind High Court in the case of A.F. Ferguson v. The Sind Labour Court, Karachi (1974 PLC 98) was not interfered by this Court in appeal but it does follow from this that the view expressed by the Sind High Court in A.F. Ferguson's case was approved by this Court as would appear from the following observations at page 434 of the report in A.F. Ferguson v. The Sind Labour Court (PLD 1985 SC 429): "It seems to us that all the points raised above by the parties did require adjudication and as some of them were disputed questions of fact they could only be decided by the Labour Court. Hence, this was a fit case in which all questions falling for determination should have been tried and determined in the first instance by the. Labour Court itself. Respondent No.2, indeed, did raise an objection to the effect that, in these circumstances, the Constitutional petition was not competent, but it was overruled and the Constitutional petition was held to be maintainable on the view that the question involved was whether the Labour Court had not usurped jurisdiction in the case and that the said question was wide public importance. It was, however, overlooked that in so holding its effect would be that while some questions stood determined by the High Court, others would still remain for decision by the Labour Court. In our view, the Constitutional jurisdiction of the High Court should not normally be exercised in cases where the entire case will not be completely disposed of.
This Court and even the Privy Council, has not favoured piecemeal and fragmentary decisions of causes; see Abdur Rehman v. Haji Mir Ahmad Khan and another PLD 1983 SC 21, Ibrahim v.
Muhammad Hussain PLD 1975 SC 457 and Nanhelal and another v. Umrao Singh AIR 1931 PC.
33. In the circumstances of the present case the prayer for exercising Constitutional jurisdiction of the High Court should, therefore, have been declined. We are, accordingly, of the opinion that the objection raised by respondent No.2 that the Constitutional petition was premature should have prevailed and the Constitutional petition dismissed on the said ground. The ultimate order passed by the High Court dismissing the Constitutional petition does not, therefore, require any alteration.
But this does not imply that we are in agreement with the view taken by it that the appellant- company constituted anindustry'. "
18. We may incidentally mention here that the decision in A.F. Ferguson & Co. Was rendered by a Division Bench of High Court of Sind which consisted of Dorab Patel and Muhammad Haleem, JJ.
(as their Lordships then were). Employees' Union, Jamia Karachi's case was also decided by another Bench of Sind High Court consisting of Zaffar Hussain Mirza (as he then was) and Saleem Akhtar, JJ. While the case of K.G. Old was decided by Shafiur Rehman J.(as he then was) Sitting single in the Lahore High Court. All the learned Judges who decided the abovementioned three cases were subsequently elevated to this Court and one of them (Saleem Akhtar, J.) is still a Judge of this Court. As this Court neither approved nor disapproved specifically the views expressed in A.F.
Ferguson & Co. Employees' Union of Jamia Karachi and K.G. Old they are entitled to the highest considerations and respect as and when these cases come up for consideration before this Court.
19. In K.G. Old's case, the learned Single Judge was considering the case of a dismissed employee of an industrial unit (workshop) maintained on commercial basis, by a technical educational institution, which offered courses in woodwork, sheet metal, welding, electrician, job mechanist fitter/turner, draughtsman and auto mechanics. It was argued before the learned Single Judge that the persons employed in such an industrial unit shall be deemed to be employed in an 'industry' as defined in the I.R.O. This contention was repelled by the learned Judge in Chambers on the ground that the workshops organised by the institution, though carried on commercial basis, would not fall within the definition of industry as the purpose for which it was established was ancillary to the main purpose of the establishment, namely imparting of technical education to the students. It was further observed by the learned Single Judge, that the enterprise as a whole has to be looked at to find out its raisond'etre, and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole'. No such question arises in the appeal before us.
20. In Jamia Karachi's case the question before the High Court of Sind was whether University of Karachi or the Board of Intermediate, Education, Karachi was an 'industry' as defined in I.R.O. The learned Judges interpreted the expressions 'industry' and 'service' used in I. R. O. As follows:-- "The importance of education can neither be ignored nor denied Education is designed to guide a man in learning and culture, and mould him towards his eventual role in society: Education through the institutions like schools, colleges and universities is agent of cultural transmission. Culture depends upon continuity, and these institutions help to provide it by transmitting accumulated knowledge and skills and values and beliefs. Schools, colleges and universities help in building up character and such qualities as honestly, piety, thrift and industriousness. Besides this they impart knowledge of at, philosophy, science, literature and last but not the least the professional expertise to meet the challenge of the and growing expansion in all fields. From the very inception of our society prime emphasis has been on learning and education. The learned people and institutions have always commanded high esteem, respect and reverence. It is a source of all knowledge and learning where people come to learn and go forth to serve. Education is the fountain head of all inventions, sciences, technology, research, learning and knowledge. The benefit a student gets or the community at large receives from the University is completely different and distinguishable from the benefit of service which provide the community with the use of something such as hotel, electric power, transportation, mail delivery, etc. The University serves the students intellectually, morally and mentally. The service rendered by the University entirely depends upon the contribution of the learning, research, study, knowledge of the men of letters. It is this distinctive character of the University which absolutely distinguish it from institutions providing material service. This absence of material nature of service keeps the university and the Board out of the pale of the word 'Industry'. Education is not a service it is a duty. Its acquirement is no longer voluntary but undisputedly it is being made compulsory. The universality and cosmopolitan nature of education keeps it completely distinct and distinguished from material service. Education is of such universal importance that in all countries, the Government have owned it as their obligation and duty towards the people. These considerations in our view are sufficient to draw a line and save it from the sweep of generality."
21. From the above-quoted passage it is quite clear that the learned Judges in that case reached the conclusion that the 'service' rendered by the University depended solely upon the contribution of learning, research, study, knowledge of the men of letters' which distinguished it from establishments rendering material service, and therefore, a University would not fall within the definition of Industry as defined in the I.R.O. According to learned Judges the rendering of a service by an establishment which is material in nature is a determinate factor to cover such an establishment within the definition of 'Industry' under the I.R.O. The expression material service came up for consideration before the Indian Supreme Court in the case of Bangalore Water Supply v. A. Rajappa (AIR 1978 SC 548), in a case arising under Indian Industrial Disputes Act (1947), which defined the word 'Industry' in section 2(j) as follows:-- "'Industry' means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft, or industrial occupation or avocation of workmen." and after an exhaustive survey of case-law the learned Judges of Indian Supreme Court made these observations while disagreeing with the earlier view of that Court expressed in the case of Safdar Jung Hospital v. Kuldip Singh Sethi (AIR 1970 SC 1407): "156. With the greatest respect to the learned Chief Justice. The arguments strung together in this paragraph are to numerous and subtle for us to imbibe. It is transcendental to define material services as excluding professional services. We have explained this position at some length elsewhere in this judgment and do not feel the need to repeat. Nor are we convinced that Gymkhana (AIR 1968 SC 554) and Cricket Club of India (AIR 1969 SC 276) are correctly decided. The learned Judge placed accent on the non-profit-making members club as being outside the pale of trade or industry. We demur to this proposition.
157. Another intriguing reasoning in the judgment is that the Court has stated ' it is not necessary that there must be a profit motive but the enterprises must be analogous to trade or business in a commercial sense'. However, somewhat contrary to this reasoning we find, in the concluding part of the judgment, emphasis on the non-profit making aspect of the institutions. Equally puzzling is the reference to commercial sense' what precisely does this expression mean? It is interesting to note that the word 'commercial' has more than one semantic shade. If it means profit-making, the reasoning is self contradictory. If it merely means a commercial pattern of organisation, of hiring and firing employees, of indicating the nature of employer--/employee relation as in trade or commercial house, then the activity---oriented approach is the correct one. On that footing, the conclusions reached in that case do not follow. As a matter of fact, Hidayatullah, C.J., had in Gymkhana (AIR 1968 SC 554) turned down the test of commerciality: 'Trade is only one aspect of industrial activity ....... This requires cooperation in some form between employers and workmen and .The result is directly the product of this association but not necessarily commercial' indeed, while dealing with the reasoning in Hospital Mazdoor Sabha (AIR 1960 SC 610) he observes: If a hospital, nursing home or a dispensary is run as a business in a commercial way, there may be found elements of an industry there'. This facet suggests either profit motive, which has been expressly negatived in the very case, or commercial-type of activity, regardless of profit, which affirms the test which we have accepted, namely, that there must be employer-employee relations more or less on the pattern of trade or business. All that we can say is that there are different strands of reasoning in the judgment which are somewhat difficult to reconcile. Of course, when the learned Judge states that the use of the First Schedule to the Act depends on the condition precedent of the existence of an industry, we agree. But, that by itself does not mean that a hospital cannot be regarded as an industry, profit or no profit; research or no research. We have adduced enough reasoning in the various portions of this judgment to regard hospitals, research institutions and training centres as valuable material services to the community, qualifying for coming within section 2(j). We must plainly state that vis-a-vis hospitals, Safdarjung (AIR 1970 SC 1407) was wrong and. Hospital Mazdoor Sabha was right."
22. Bangalore Water Supply case (supra) specifically overruled Safdarjung case (AIR 1970 SC 1407), Solicitors' cases (AIR 1962 SC 1080) Gymkhana case (AIR 1968 SC 554), Delhi University case (AIR 1963 SC 1873), Dhanrajgirji Hospital case (AIR 1975 SC 2032). Some of these cases were specifically referred and relied in the judgments rendered in the cases of K.G. Old and Jamia Karachi. In the final analysis the learned Judges of Indian Supreme Court interpreted the word 'Industry' in Bangalore Water Supply case (supra) as follows:-- "161. 'Industry', as defined in section 2(j) and explained in Banerji (AIR 1953 SC 58) has a wide import.
(a) Where (i) systematic activity, (ii) organized by cooperation between employer and employee (the direct and substantial element is chimerical), (i.e) for the production and/or distribution of goods and services calculated to satisfy human wants and wishes (not spiritual or religious but inclusive of material things or services geared to celestial bliss i.e. Making, on a large-scale prasad or food) prima facie, there is an industry in that enterprise.
(b) Absence of profit motive or gainful objective is irrelevant, be the venture in the public, joint, private or other sector.
(c) The true focus is functional and the decisive test is the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organization is a trade or business it does not cease to be one because of philanthrophy animating the undertaking.
II Although section 2(j) uses words of the widest amplitude in its to limbs, their meaning cannot be magnified to overreach itself.
(a) 'Undertaking' must suffer a contextual and associational shrinkage as explained in Banerji and in this judgment; so also, service, calling and the like. This yields the inference that all organized activity possessing the triple elements in I (supra), although not trade or business, may still be 'industry' provided the nature of the activity, viz. The employer-employee basis, bears resemblance to what we find in trade or business. This takes into the fold 'industry' undertakings, callings and services, adventures 'analogous to the carrying on of trade or business'. All features, other than the methodology of carrying on the activity viz. In organizing the cooperation between employer and employee, may be dissimilar. It does not matter, if on the employment terms there is analogy.
III. Application of these guidelines should not stop short of their logical reach by invocation of creeds, cults or inner sense of incongruity or outer sense of motivation for or resultant of the economic operations. The ideology of the Act being industrial peace, regulation and resolution of industrial disputes between employer and workmen, the range of this statutory ideology must inform the reach of the statutory definition. Nothing less, nothing more:
(a) The consequences are (i) professions, (ii) clubs, (i.e) educational institutions, (iv) cooperatives,
(v) research institutes, (vi) charitable projects and (vii) other kindred adventures, if they fulfil the triple tests listed in I (supra), cannot be exempted from the scope of section 2(j).
(b) A restricted category of professions, clubs, cooperatives and even gurukulas and little research labs, may qualify for exemption if, in simple ventures, substantially and, going by the dominant nature criterion, substantively, no employees are entertained but in minimal matters, marginal employees are hired without destroying the non---employee character of the unit.
(c) If, in a pious or altruistic mission many employ themselves, free or for small honoraria or like return, mainly drawn by sharing in the purpose or cause, such as lawyers volunteering to run a free legal services clinic or doctors serving in their spare hours in a free medical centre or ashramites working at the bidding of the holiness, divinity or like central personality, and the services are supplied free or at nominal cost and those who serve are not engaged for remuneration or on the basis of master and servant relationship, then, the institution is not an industry even if stray servants, manual or technical, are hired. Such eleemosynary or like undertakings alone are exempt not other generosity, compassion, developmental passion or project.
IV. The dominant nature test:
(a) Where a complex of activities, some of which qualify for exemption, others not, involves employees on the total undertaking, some of whom are not 'workmen' as in the University of Delhi case (AIR 1963 SC 1873) or some departments are not productive of goods and services if isolated, even then, the predominant nature of the services and ' the integrated nature of the departments as explained in the Corporation of Nagpur (AIR 1960 SC 675) will be the true test. The whole undertaking will be 'industry' although those who are not 'workmen' by definition may not benefit by the status.
(b) Notwithstanding the previous clauses, sovereign functions, strictly understood (alone) qualify for exemption, not the welfare activities or economic adventures undertaken by Government or statutory bodies.
(c) Even in departments discharging sovereign functions, if there are units which are industries and they are substantially severable, then they can be considered to come within section 2(j).
(d) Constitutional and competently enacted legislative provisions may well remove from the scope of the Act categories which otherwise may be covered thereby.
V. We overrule Safdarjung (AIR 1970 SC 1407), Solicitors' case (AIR 1962 SC 1080), Gymkhana (AIR 1968 SC 554), Delhi University (AIR 1963 SC 1373), Dhanrajgirji Hospital (AIR 1975 SC 2032) and other rulings whose ratio runs counter to the principles enunciated above, and Hospital Mazdoor Sabha (AIR 1960 SC 610) is hereby rehabilitated."
23. It may be mentioned here that view expressed in the case of Banerji (AIR 1953 SC 58) by the Indian Supreme Court which was carried forward in Hospital Mazdoor Sabha (AIR 1960 SC 610) and Nagpur Corporation (AIR 1960 SC 675) did not meet with approval in the Safdarjung (supra).
However, with the decision in Bangalore Water Supply case (supra) the Indian Supreme Court once again reaffirmed the view expressed in Banerji, Hospital Mazdoor Sabha and Nagpur Corporation (supra) as correct. In Nagpur Corporation case, the Supreme Court of India addressed the question whether functions of Nagpur Corporation fall within the ambit of definition of Industry as defined in the Indian Industrial Disputes Act (1947) and concluded as follows:-- "(17) The result of the discussion may be summarized thus: (1) The definition of 'industry' in the Act is very comprehensive. It is in to parts: one part defines it from the standpoint of the employer and the other from the standpoint of the employee. If an activity falls under either part of the definition, it will be an industry within the meaning of the Act. (2) The history of industrial disputes and the legislation recognizes the basic concept that the activity shall be an organized one and not that which pertains to private or personal employment. (3) The regal functions described as primary and inalienable functions of State though statutorily delegated to a corporation are necessarily excluded from the purview of the definition. Such regal functions shall be confined to legislative power. (4) If a service rendered by an individual or a private person would be an industry, it would equally be an industry in the hands of a corporation. (5) If a service rendered by a corporation is an industry, the employees in the departments connected with the service, whether financial, administrative or executive, would be entitled to the benefits of the Act. (6) If a department of a municipality discharges many functions, some pertaining to industry as defined in the Act and other non-industrial activities, the predominant functions of the department shall be the criterion for the purposes of the Act. "
24. The I.R.O. Is basically a beneficial Legislature which provide for protection of the rights of labour classes. Its object amongst other is to ameliorate the conditions of workers. Such a legislation has to be construed liberally and beneficially. A restricted constructor of the provisions of the I.R.O.
Would defeat the manifest objective of the legislation. Keeping in view the beneficial nature of the statute I am inclined to hold that except for those functions of Quetta Municipal Corporation which may fall within the ambit of its regal functions its other functions, such as rendering civic services etc. Would be covered by the expression 'services' used in the definition of word 'Industry' under the I.R.O. I am unable to subscribe to the view taken by the learned Judges of High Court that on account of omission of the word "undertaking" from the definition of 'Industry' in the I.R.O., the Municipal Corporation would not be covered by the definition of 'Industry' as it stands now in the I.R.O. In my humble view the omission of word 'undertaking' from the definition of 'Industry' in the I.R.O. Made no difference as the 'service' continue to remain a part of the definition of 'Industry'. I, therefore, respectfully feel inclined to agree with the interpretation of word 'Industry' by the Indian Supreme Court in the case of Nagpur Corporation and Bangalore Water Supply. In the case of Employees , Old-Age Benefits Institution v. N.I.R.C. (1988 SCMR 745) it was contended before this Court that the institution of Old-Age Benefit does not fall with the meaning of 'industry' as defined in the I.R.O. The contention was ,repelled as follows:-- "Finally, it is urged on behalf of the appellant institution that its functions do not constitute "Industry" within the meaning of section 2(xiv) of the Industrial Relations Ordinance. The said clause defines the word 'Industry' to mean any business, trade, manufacture, calling, service, employment or occupation. There are a large number of reported cases in which attempts had been made to determine the precise scope of this clause; in some cases a narrower construction has been placed upon it while in others it had been given a wider content. For example, see K.G. Old, Principal, Christian Technical Training Centre v. Punjab Labour Court (1976 PLC 675) and A.F. Ferguson & Co. v.
The 5th Sind Labour Court (1974 PLC 98). For the disposal of this appeal, it is unnecessary to refer to these cases as there can be little doubt that the functions of the appellant institution do constitute 'service' within the meaning of the said clause. Ordinarily, it would be the obligation of an employer himself to look after his workers by providing relief to them in the event of their becoming sick or disabled or aged. The statute which has created the appellant has institutionalised these functions, which really belong to the employer by setting up a body for performing them for him. The appellant institution is thus rendering a service to the industrial and commercial sectors. It cannot, therefore; 'say that its functions fall outside the purview of clause (xiv)."
25. In the case before me, the admitted position is that appellant was registered as a Trade Union of Workers in the year 1983. The procedure for cancellation of registration of a Trade Union if it is registered in contravention of any of the provisions of the I.R.O. Is provided in section 10 of I.R.O. No such proceedings were ever taken or initiated. The registration of appellant was cancelled in the Constitution petition filed directly by respondent No.1, before the Baluchistan High Court. There is nothing on record to show that the members of appellants who were employee of respondent No: l were performing or were connected with the performance of any of the regal functions of the Corporation so as to disentitle the appellants to get itself registered as a Trade Union of Workers. In any case, the question relating to the nature of duties and functions performed by the employees of respondent No. l who formed themselves into a Trade Union, was a question of fact which required evidence, and, therefore, the same could not be determined satisfactorily in the proceedings under Article 199 of the Constitution, especially when an alternateprocedure for such determination was provided for under the I.R.O. I accordingly accept the appeal and recall the writ issued by the High Court in the above case. There will be no order as to cost.