1. The facts forming the background of this petition are that the peti--tioner is a charitable society registered under the Societies Registration Act (XXI of 1860) and owner of a hospital known as Seventy Day Adventist Hospital, situated at 91-Depot Lines, M. A. Jinnah Road, Karachi, which is run on no profit basis. Respondent No. 3, Mohammad Rafiq, was employed in the hospital as an Assistant Business Manager on a salary of Rs. 704 p.m. On 22-1-1975, services of the respondent No. 3 were terminated with one .Month's pay in lieu of notice as, according to the petitioner, due to reorganisation in consequence of computerization of patients' account his services became surplus to the hospital requirements. Feeling aggrieved, the respondent served a notice on the petitioner for re--instatement on the ground that his services had been terminated illegally. The petitioner replied to the notice refuting the allegation and refused to re--instate him. The respondent No. 3, thereupon filed a Suit No. 451 of 1975 for declaring notice of termination of service as illegal and for injunction to restrain the hospital from obstructing him from discharging his duties and evicting him from the hospital accommodation, which is still pending. Thereafter, on 3- 3-1975, respondent No. 3 filed an application under sec--petition 25-A of the Industrial Relations Ordinance, 1969, before the IV Junior Labour Court, Karachi, against the termination of his services alleging violation of Standing Orders Nos. 12(3), 13 and 16 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, hereinafter referred to as the "Standing Orders Ordinance". The petitioners contested the application and filed objections wherein their case mainly was that the hospital in question was a charitable hospital run on no profit basis and, therefore, did not fall within the scope of definition either of "Industrial establishment" or a "commercial establishment" given in sections 2 (b) and 2 (f ) of the Standing Orders Ordinance, and consequently, the respondent No. 3 did not fall within the definition of a worker under section 2(i) of the said Ordinance to entitle him to file the application and invoke the jurisdiction of the Junior Labour Court under section 25-A of the Industrial Relations Ordinance, 1959.
2. The Junior Labour Court upheld the contention of the petitioners and dismissed the application by its order dated 7-7-1975. The relevant finding given by the Court after referring to the definition of "commercial establish--ment" and "industrial establishment" under the "Standing Orders Ordi-- nance", may be reproduced as under :- "It will thus appear that a hospital is not covered by the aforesaid definitions of "Industrial" and "Commercial Establishment". In other words, the respondents hospital being neither a "commercial" nor an "industrial establishment" it falls outside the scope of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. As such the rights guaranteed/secured under the Standing Orders Ordinance, are not available to the applicant for enforcement, through an application under section 25-A of the 1. R. O., 1969.
3. Being aggrieved, the respondent No. 2 went in appeal before the V Sind Labour Court, Karachi. The appellate Court mainly relying on the decision from the Indian Jurisdiction reported as State of Bombay v. Hospital Mazdoor Sabha and others (AIR 1960 SC 610formed the view that the private hospital categorised as the public utility services under 1. R. O. Was not outside the scope and purview of the Standing Orders Ordinance simply because it was not speci--fically listed as such in the categories of industrial and commercial estab--lishment, as the Legislature in their wisdom had also enumerated another class of undertaking of industrial or commercial nature which was wide enough to assimilate an establishment such as hospital which had assumed new dimension of an industry in the changing circumstances of society particularly when it employed sufficient labour force and a team of doctors and nurses and huge office establishment to supervise and manage its affairs of a big hospital, such as the Seventy Day Adventist Hospital. He accor--dingly set aside the order of the Junior Labour Court and remanded the case for recording evidence and deciding it on merits vide his decision dated 12-8-1975. Hence this petition.
4. Mr. A. A. Fazeel, learned counsel appeared for the petitioners, while Mr. Tahir Hussain appearing from respondent No. 3 stated that he had failed to contact his client as the letter sent to him had been returned undelivered with the endorsement that the respondent No. 3 had left and pleaded no inst--ructions. He however requested for placing on record the Registered A. D. Letter returned to them as undelivered. Mr. Tahir Hussain further added that according to their information, respondent No. 3 has left for abroad for good and it may perhaps, be for this reason that the letter was returned to them undelivered.
5. The first contention raised by Mr. A. A. Fazeel, learned counsel for the petitioner was that in order to invoke the Jurisdiction under section 25-A of the 1. R. O., 1969 for commission of breach of any of the provisions of the Standing Orders Ordinance, the respondent No. 3 had to establish that he was a workman within the meaning of its definition under the Standing Orders Ordinance and not under the I. R. O. 1969, and the appellant Labour Court acted unlawfully in interfering with the order passed by the Junior Labour Court by basing its decision on the definition of a workman" as contained in the I. R. O., 1969, which was not applicable in the instant case. In support of his argument, learned counsel referred to PLD 1975 Kar. 59, PLJ 1974 Kar. 252 and PLD 1975 Pesh. 240. The next contention of the learned counsel was that since the hospital was a charitable hospital run on no profit basis, it did not fall within the scope either of commercial establishment or industrial establishment as provided in sec--tions 2(6) and 2(h) of the "Standing Orders Ordinance" and therefore its employees could not be said to be the workmen within the definition of section 2(1) of the said Ordinance entitling them to invoke the jurisdiction under section 25-A of the Industrial Relations Ordinance, 1969.
6. Both the contentions raised by the learned counsel are well founded. Section. 25-A of the I. R. O.
7. Reads as under :- "A worker may bring his grievance in respect of any right guaranteed or secured to him by or under any law or any award or settlement for the time being in force to the notice of his employer in writing, either himself or through his shop Steward or Trade Union, within three months of the day on which cause of such action arises.
(2) Where a worker himself brings his grievance to the notice of the employer, the employer shall, within fifteen days of the grievance being brought to his notice, communicate his decision in writing to the worker.
(3) Where a worker brings his grievance to the notice of his employer through his Shop Steward or Trade Union, the employer shall, within seven days of grievance being brought to his notice, com-- municate his decision in writing to the Shop Steward or, as the case may be, the Trade Union.
(4) If the employer fails to communicate a decision within the period specified in subsection (2) or, as the case may be, subsection (3), or if the worker is dissatisfied with such decision, the worker or Shop Steward may take the matter to his Trade Union or the (Junior Labour Court). Or, as the case may be, the Trade Union may take the matter to the Junior Labour Court and where the matter is taken to the Junior Labour Court, it shall give a decision within seven days from the date of the matter being brought before it as if such matter was an industrial disputes.
8. Provided that a worker who desires to so take the matter to the Junior Labour Court shall do so within a period of two months from the date of the communication of the employer, or, as the case may be, from the expiry of the period mentioned in subsection (2) or sub--section (3), as the case may be.
(5) In adjudicating and determining a grievance under subsection (4), the Junior Labour Court shall go into all the facts of the case and pass such orders as may be just and proper in the circumstances of the case.
(6) Notwithstanding anything contained in subsections (1) to (4) any worker aggrieved by the termination of his employment as a result of retrenchment, dismissal, discharge, lay-off, lock out, or otherwise not earlier than two months preceding the commencement of the Industrial Relations (Amendment) Ordinance, 1972, may, within a period of two months from the commencement of the Industrial Relations Ordinance (Amendment) Act, 1973, or the termination of the employment, whichever is later, either himself or through his Shop Steward or Trade Union, take the matter directly to a Junior Labour Court having Jurisdiction in the area in which the establishment is situated.
(7) Where a matter is taken to the Junior Labour Court under sub--section (6) the Junior Labour Court shall give its. Decision thereon in the manner laid down in subsections (4) and (5)."
9. The above provisions would indeed show that it only provides a forum for the enforcement of any right guaranteed or secured under any law and admittedly, infringement complained in the instant case was of the rights guaranteed by Standing Orders 12, 13 and 16 of the "Standing Orders Ordi-- nance", in which case the respondent No. 3 indeed had to show that he was a "workman" within the definition of section 2(i) of the aforesaid Ordinance. As was held by the Junior Labour Court. The 5th Sind Labour Court was, therefore, wrong in basing its decision on the definition of a "workman" as given in the I. R. O., 1969 which was much wider in scope than the definition of a "workman" in the Standing Orders Ordinance. For support, reference may be made to the D. B. Decision of this Court reported as PLJ 1974 Kar. 252 wherein my brother Fakhruddin G. Ebrahim, J. Observed as follows :- "It however appears to me that the definition of "workmen" rele--vant for our purpose is that contained in Standing Orders Ordinance for what was sought to be enforced by the petitioner, in his applica--petition under section 34 of the I. R. O., was a term guaranteed to him under the Standing Orders Ordinance."
10. The same view was taken in the Single Bench decision reported as I. E. Saleh v. International Laboratories Limited etc. (PLD 1975 Kar. 279The relevant observation appearing at page 63 of the report may be reproduced as under :- "It was next contended by Mr. Naimur Rehman, Advocate for the petitioner, that the term "workman" should be construed in the light of the extended definition of the said word as contained in section 2 (xxviii) of the Industrial Relations Ordinance. No doubt the definition is wider than the definition of "workman" as contained in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. However, I have no doubt in my mind that for enforcement of rights of workman guaranteed by the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, the definition of workman in that statute has to be followed, In fact, section 3 of the Ordinance makes the position clear. It states as under :- Enforcement of Standing Orders.-In industrial or commercial establishments, conditions of the employment of workmen and other incidental matters shall, subject to the other provisions of this Ordinance, be regulated in accordance with the Standing Orders.
11. Section 25-A of the Industrial Relations Ordinance is designed to provide for redress in case of infringement of any right guaranteed or assured under any law. The only law which is attracted to the instant case is the Standing Orders Ordinance. Placed in such position Mr. Naimur Rehman, alternatively urged before me that the petitioner was a victim of unfair labour practice as contemplated by section 15 of the industrial Relations Ordinance but I cannot overlook that as against unfair labour practices a separate and distinct provision in the shape of section 53 of the Industrial Relations Ordinance exists and the proceedings instituted by the petitioner in the present case were not under section 53 of the Ordinance, but for redress of individual grievance under section 25-A of the Industrial Relations Ordinance. The contention is for such reason clearly misconceived and in any case it would be unfair to the respondents, if I were to record such a finding on the basis of unfair labour practice in these proceedings because that would be a case at variance with the original case set up by the petitioner before the Labour Courts."
12. Yet another case in which the same view was taken is reported as Tarbela Joint Venture v. Labour Appellate Tribunal and others (PLD 1975 Pesh. 240 The next question for consideration is whether the petitioner hospital fell within the definition of either a `commercial establishment' or an 'industrial establishment' as defined in sections 2(b) and 2(f ) of the `Standing Orders Ordinance' which read as under :- "(b) "commercial establishment" means an establishment in which the business of advertising, commission or forwarding is conducted, or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establish--ment, employs workmen, a unit of joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Govern--ment may, by notification in the official Gazette, declare to be a commercial establishment for the purposes of this Ordinance ;
(f) "Industrial establishment" means-
(i) an industrial establishment as defined in clause (ii) of section 2 of the payment of Wages Act, 1936 (IV of 1936) ; or
(ii) a factory as defined in clause (i) of section 2 of the Factories Act, 1934 (XXV of 1934) ; or
(iii) a railway as defined in clause (4) of section 3 of the Railways Act, 1890 (IX of 1890) ; or
(iv) the establishment of a contractor who, directly or indirectly, employs workmen in connection with the execution of a contract to which, he is a party, and includes the premises in which, or the site at which process connected with such execution is carried on ; or
(v) the establishment of person who, directly or indirectly employees workmen in connection with any construction industry."
13. "(a) The promotion, by means of medical educational, and social welfare work of a better knowledge of the laws of life and health ; the prevention of sickness and suffering ; the care and healing of the sick and afflicted ; the training of doctors, nurses, technicians, teachers and social welfare workers; the education of the illiterate ; the providing of aid by means of food, clothing, and shelter to the disaster striken ; the doing of benevolent, philanthropic work for the good of humanity and the uplift of all men irrespective of nationality, race or creed within the country of Pakistan.
(b) The soliciting and accepting of gifts, contributions and sums of money for the realization of the objects set forth in Paragraph (a) of clause III.
(c) The providing of financial and material assistance for the establish--ment and construction of hospitals, dispensaries, health centres, nurses, training schools, schools, and rural uplift centres ; and for the importation and free distribution of food, clothing, and medical supplies for the poverty stricken and destitute of Pakistan.
(d) The Association is a non-profit organization it being expressly under--stood that no dividends .
14. Or profits shall ever be paid or distributed among any members of the Association or its Officers.
(e) It is further expressly understood that all hospitals, clinics, dispensaries, schools, welfare and relief centres established and operated by Seventh-day Adventists in Pakistan are an integral part of the Association and shall operate in full harmony with all the objects of the Association as outlined in the Memorandum and Articles of Association under this Clause III. No exception to this rule shall be permitted."
15. It is further provided in article XI at page 8 of the Memorandum of Association, "that income of the various charitable and benevolent enterprise of this Association shall be applied towards meeting the expenses attendant thereon respectively, and the surplus, if any, shall be - applied towards the promotion of the objects, and the work of the Association and that no portion shall be paid or transferred, directly or indirectly, by way of dividends, bonus, or otherwise, however, by way of profit to the persons who at any time are or have been members of the said Association or to any of their heirs or assigns for or claiming through any of them. Provided that nothing shall, prevent the payment in good faith or remuneration to any officers. Or servants of the said Association, or to any member thereof or to any other person in return for any services actually rendered to the said Association". Further, the petitioner is also exempted from paying income-tax under section 15(d) of the Income-tax Act, 1922, on the basis of the petitioner society being a charitable institution run on no profits basis.
16. The aforesaid features of the petitioner institution would indeed show that the hospital is neither an industry nor an establishment of industrial or commercial type but is purely a charitable institution run on no profits basis. Reference may be made in this connection to the case reported as 1975 PLC 222 ; unreported decision dated 19-6-1976 given by the Punjab Labour Appellate Tribunal, Lahore in the case of United Christian Hospital, Lahore v. United Christian Hospital Employees' Union. In the first cited case, the Chairman of the Labour Appellate Tribunal, Mr. Justice (Retd.) Inamullan Khan, while dealing with the similar question held that the Y. M. C. A.
17. Being a charitable institution was neither industrial nor a commercial establishment. In the second case, Mr. Justice (Retd.) Jamil Asghar after reviewing the number of cases from the foreign as well as our own jurisdiction held that United Christian Hospital, which was also a Society registered under the Societies Registration Act having same objects as the petitioner hospital in the instant case, was not an industry and as such its employees had no locus standi to file and maintain the petition under section 25-A of the I. R. O. It is true that the afore-mentioned decision are by Labour Appellate Tribunal but it has to be borne in mind that the Tribunals were presided by retired Judges of the various High Courts with vast experience and their views are therefore entitled to very great respect. Furthermore, nothing contrary has been pointed out or brought on record to pursuade me to take a different view. In this view of the matter, employees of the petitioner hospital did not qualify as `workmen' within the definition given in section 2(i) of the "Standing Orders Ordinance" and consequently, respondent No. 3 was not competent to. Invoke the jurisdiction of the Junior Labour Court, by filing application under section 25-A of the I. R. O. Which was, therefore, rightly dismissed by the Junior Labour Court. It may be pointed out here that the Appellate Labour Court in interfering with the order of the Junior Labour Court had relied upon a case from Indian Jurisdiction reported as AIR 1960 SC 610 wherein employees of the hospital were held to be workmen under the Industrial Disputes Act. The learned Appellate Judge, however, failed to appreciate that the provisions of the Industrial Disputes Act, on the basis of which that decision was given, were-quite different from these of the Standing Orders Ordinance, 1968 and that, in any case, the view taken in the aforesaid Indian case was departed from by the Supreme Court in AIR 1970 SC 1043, wherein it was held that, employees of a charitable hospital did not fall within the purview of definition of "workmen" under the Industrial Disputes Act, as was contended by Mr. A. A. Fazeel, the learned counsel for the petitioner.
18. For the aforesaid reasons I allow the petition and quash the impugned order passed by the Sind Labour Court as being of no legal effect. In the circumstances of this case I make no order as to costs.