SAIDUZZAMAN SIDDIQUI, C.J.---The leave granting order in the abovementioned 14 Appeals reads as follows:-- "This order will deal with C.Ps. Nos.994 to 1005/L of 1992.
(1) Petitioner Lahore Development Authority seeks leave to appeal against orders of a learned Judge of the Lahore High Court in Writ Petition No,2924 of 1886 dated 26-5-1992 and in connected matters.
(2) Relevant facts are that the petitioner terminated the services of its employees, the respondents, whereupon they successfully challenged the orders before the Labour Courts. The petitioner's Constitution petitions failed in the Lahore High Court.
(3) Contention of the learned counsel for the petitioner is that West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 applies 'vide section 4(a) to "industrial or commercial establishment". Lahore Development Authority is not an industrial nor a commercial establishment. In this view of the matter the learned counsel submits that there is no need to go on to consider or apply the proviso which reads as follows:-- Provided that nothing in this Ordinance shall apply to industrial and commercial establishments carried on by or under the authority of the Federal or any Provincial Government, where statutory rules of service, conduct or discipline are applicable to the workmen employed therein'.
Contention is that the petitioner being neither industrial nor commercial establishment, its being carried on under the authority of the Provincial Government would not arise, though if it were such an establishment it was under the Provincial Government. In that event statutory rules of service framed under section 45 of the Lahore Development Authority Act, though called regulation were promulgated in 1978 and approved by the competent authority. Their publication, in the Gazette subsequently would not affect their applicability as those were not required to be gazetted by the Statute. Interpretation of several statutes is involved. Therefore, leave to appeal is granted." We have heard Mr. .Laved Altaf, Advocate Supreme Court, for appellants while Ch. Muhammad Akram, Advocate Supreme Court has appeared for respondents only in four appeals. Rest of the respondents have not defended the appeals. The above appeals arise out of proceedings initiated by the respondents under section 25-A of Industrial Relations Ordinance, 1969 (I.R.O.) The appellants who were respondents in the proceedings commenced under section 25-A of the I.R.O. Resisted the same on merits as well as on the ground that provisions of I.R.O. Or West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance,' 1968 (hereafter to be referred as the Ordinance') did not apply to the dispute raised by the respondents. The Labour Court rejected the legal objection and having found on merit that dismissal of respondents was not justified, directed reinstatement of respondents in service with all the back benefits. The appellants challenged the order of Labour Court in appeals before the Labore Appellate' Tribunal, only on the ground of lack of jurisdiction of Labour Coati which failed. The appellants then challenged the decisions of the Labour Court and the Labour Appellate Tribunal in several writ petitions which too were dismissed and against the order of High Court leave to appeal was granted by this Court as aforesaid.
2. The only contention pressed by the learned counsel in support of the above appeals is that the Lahore Development Authority (LDA) is neither an industry nor a commercial establishment and as such the provisions of West Pakistan Industrial and Commercial Employment (Standing Orders)
Ordinance, 1968 did not apply to it. It is contended by the learned counsel for the appellants that the functions performed by the L.D.A. Are sovereign/regal functions and therefore, L.D.A. Cannot be termed as an industry so as to give rise to the rights claimed by the respondents. Section 6 of the Lahore Development Authority Act, 1975, under which the appellant is functioning; enumerates its functions as follows:-.- "6. Powers and functions of the Authority.--(1) Subject to the provisions of this Act and any rule framed thereunder, the Authority may exercise such power and take such measures as may be necessary for carrying out the purposes of this Act.
(2) Without prejudice to the generality of the foregoing subjection, the authority may-
(i) prepare, implement and enforce the Lahore Metropolitan Development Plan;
(ii) prepare, implement and enforce the Annual Development Programme for the area;
(iii) prepare, implement and enforce schemes for environmental improvements, housing, urban renewal including slums, clearance and redevelopment, water supply, sewerage, drainage, solid waste disposal, transportation and traffic health and education facilities and preservation of objects or places of historical, archaeological, scientific, cultural and recreational importance;
(iv) take any step or adopt any measures for the face lifting and beautification of the area;
(v) acquire property, both movable and immovable;
(vi) sell, lease, exchange or otherwise dispose of any property vested in it;
(vii) undertake any works and incur any expenditure;
(viii) procure machinery, instruments or any other material required by it:
(ix) enter into contracts;
(x) cause study, surveys, experiments, technical researches or to contribute towards the cost of any such studies, surveys, experiments or technical researches, made by any other Agency;
(xi) issue interim development orders for areas for which a scheme is under preparation and restrict or regulate by general or special order, any change in the use of land and alteration in building structures and installations;
(xii) cause removal of any works obstructing the execution of its schemes; (xiii)seek and obtain advice and assistance for the preparation of any scheme or for the execution of any schemes form any Government Agency or person, and such agency or person shall give the advice and assistance sought by the Authority to the best of its ability, knowledge and judgment and the additional expenditure, if any, involved in giving such advice or assistance shall be borne by the authority." Learned Judge in Chambers after considering the above functions performed by the L.D.A. Came to the following conclusions: From the above, it would appear that the Authority is not only empowered to prepare, implement and enforce the Metropolitan Development Plan and Annual Development Programme but also prepare, implement and enforce schemes for environmental Improvements. Housing, water supply, sewerage, drainage, solid waste disposal, transportation and traffic health facilities as also sell, lease, exchange and dispose of any property, undertake any work, incur any expenditure. There is no denial that in addition to rendering various services, like sewerage, water supply, drainage, solid waste disposal, the petitioner is also engaged in construction of roads, flats and houses. For the purposes of implementing its schemes, land acquired by the authority is developed by it and a part thereof is sold in form of plots to the general public through auction or negotiations as the case may be. It is thus difficult to accept the contention of the learned counsel for the petitioner that the petitioner is not rendering any service and is, therefore, not an industry within the meaning of the Industrial Relations Ordinance, 1969.
26. So far as the cases relied upon by the learned counsel for the petitioner are concerned, it may, at the very outset, be noticed that the cases relate to educational institutes which do render any material services and have been held not to be an industry. In the case of Employees' Union, Jamia Karachi and another v. Registrar of Trade Unions, Sindh and 2 others (1981 PLC 403), the Sindh High Court observed that the words 'Industry' and 'service' are capable of various interpretations which may differ according to one's approach, notions, socio-economic consideration and ideology and that only that services which are material in nature and are outcome of an organized economic activity in continuity with cooperation of workers and management will be treated as industry. After noticing the provisions of the University of Karachi Act, 1972, it was held that as the services, being provided by the University are not material services, therefore, cannot be said to be falling within the definition of industry. Apart from being clearly distinguishable, it may be observed that the ratio laid down therein supports the case of respondent No,1 instead of the petitioner as the services being rendered by the Lahore Development Authority are material in nature."
3. The learned counsel for the appellants has relied on the following cases in support of his contention that L.D.A. Could not be treated as an industry:---
(1) K.G. Old, Principal, Christian Technical Training Centre, Gujranwela v. Presiding Officer, Punjab Labour Court PLD 1976 Lahore 1097;
(2) A.F. Ferguson & Co. v. Sindh Labour Court PLD 1985 SC 429;
(3) Employees' Union, Jamia Karachi v. Registrar, of Trade Unions, Sindh and 2 others 1981 PLC 403;
(4) Lahore Development Authority (WASA) v. Salah-ud-Din 1983 PLC 281;
(5) Government of Balochistan v. Livestock Employees' Union 1993 PLC 13; and (6, An unreported decision dated 7-10-1992 (Livestock Employees' Union, Agricultural Baildar Employees' Union and Forest ' Employees and Workers' Union v. Government of Balochistan and others C.P.L.As. Nos. 66-Q, 67-Q and 74-Q of 1992).
4. The scope of word 'industry' was examined at length in the case of Agriculture Workers' Union v.
Registrar of Trade Unions 1997 SCMR 66. In that case, the appeal was brought before this Court from the order of a learned Division Bench of High Court of Balochistan whereby a writ petition filed by the Registrar of Trade Unions was accepted and the order denying registration of trade mark was upheld. The precise question which came up for consideration in the above case, was whether the persons employed as Beldars, Palaydars, Malis, tractor clearners,' vehicle drivers, storekeepers, budders, crop reperters, tractor drivers etc. Were entitled to form a union and get themselves registered in accordance with the Industrial Relations Ordinance (IRO). The contention of the respondents in the above case was that as the functions performed by the employees of Agricultural Department and Quetta Municipal Corporation were in the nature of regal functions, therefore, such an establishment could not be treated as an industry. Reliance was placed in these cases on large number of reported cases including those cited before us by the learned counsel for the appellants in the above, appeal. These cases were considered at length and after an exhaustive discussion, the contention was disposed of as follows:-- "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 Sindh High Court in the case of Employees' Union of Jamia Karachi. According to learned Judges of High Court of Balochistan, both the above noted cases were approved by this Court in the case of A.F. Ferguson v. The Sindh Labour Court.
16. I will here first examine the decision of this Court in the case of A.F. Ferguson & Co. v. Sindh Labour Court which according to learned Judges of the High Court of Balochistan approved the decision 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 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 Sindh 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 organized 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 under stood 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 Hassan 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 two 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 Sindh High Court consisting of Mr. Justice Zaffar Hussain Mirza (now a Judge of- this Court) and Mr. Justice . Salim Akthar in the case of Employees' Union, Jamia Karachi v. Registrar of Trade Unions, Sindh 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
(iii) that 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 Sindh High Court in the case of A.F. Ferguson v. The Sindh Labour Court, Karachi 1974 PLC 98 was not interfered by this Court in appeal but it does not follow from this that the view expressed by the Sindh High Court in A.F. Fergosun'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 Sindh 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 liad not usurped jurisdiction in the case and that the said question was of 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 Ahmed 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 alternation.
But this does not imply that we are in agreement with the view, taken by it that the appellant- company constituted an 'industry' ."
18. We may incidentally mention here that the decision in A.F. Ferguson & Co. Was rendered by a Division Bench of High Court of Sindh which consisted of Dorab Patel and Muhammad Haleern, JJ.
(as their Lordships then were). Employees' Union, Jamia Karachi's case was also decided by another Bench of Sindh 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. OId 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 machinist 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 organized by the institution, though carried on commercial basis, would not fall within the demotion 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 raison deter, 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 Jatnia Karachi's case the question before the High Court Of Sindh 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 honesty, piety, thrift and industriousness. Besides this they impart knowledge of art, philosophy, science, literature and last but not the least the professional expertise to meet the challenge of time 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 Saidar 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 too 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 the 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 institution. 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 organization, of hiring and tiring 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 negative 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 centers 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. Bengalore Water Supply case (supra) specifically overruled Safdarjung case AIR 1970 SC 1407, Solicitors' case 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) organised by cooperation between employer and employee (the direct and substantial element is chimerical), (iii) 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 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 hi the public, joint, private or other sector.
(c) The true focus is functional and the decisive test in the nature of the activity with special emphasis on the employer-employee relations.
(d) If the organisation is a trade or business it does not cease to be one because of philanthropy animating the undertaking. II. Although section 2(j) uses words of the widest amplitude in its two 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 yield 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, calling 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, (iii) educational institutions, (iv) cooperatives,
(v) research institutes, (vi) charitable projects, and (vii) other kindred adventures, if they fulfill 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 undertaking alone are exempt not other generosity, compassion, development 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 case AIR 1963 SC 1373, Dhanrajgirji Hospital case 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 Safdar jung (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 two 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 organised 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 arcs 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 beneficial legislation 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 defect 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."
5. In view of the above-stated legal position, we are of the view that the conclusion reached by the learned Single Judge in the above cases that the appellants fall within the meaning of an 'industry' is not open to any exception. No other point was raised. No case for interference with the judgment of High Court is made out. The appeals are, accordingly, dismissed. However, as majority of respondents has not appeared and defended the case, there will be no order as to costs.