1. ' SAIYED SAEED ASHHAD, C.J.---In this Constitutional petition, the petitioners have sought the following reliefs.
(i) hold and declare that impugned decisions dated 24-11-1995 (Annexure 'E' to the petition) and decision dated 10-6-1996 (Annexure 'F' to the petition) are unlawful and without lawful authority;
(ii) stay the operation of the impugned decisions dated 24-11-1995 and 10-6-1996;
(iii) any other relief which this Hon'ble Court may deem fit and proper in the circumstances of the petitioner.
2. ' The brief facts of the case as stated in the memo. Of petition are that the petitioners are statutory corporation created and established under the Act of 1956 with the aims and objects to facilitate acquisition of the Air Transport for better provisions. It was further submitted that after promulgation of the Employees Old Age Benefit Act, 1976 (hereinafter referred to as "the Act of 1976") the petitioners received notices from respondent No,2 for getting PIA hangers, kitchens and printing press registered under the Act of 1976 on the ground that the workers working therein were covered by the definition of "employee" and the precincts were covered by the definition of "establishment" as provided in the Act of 1976. This claim/demand was resisted by the petitioners on the ground that such precincts were integral part and parcel of the establishment of the petitioners and all of them were providing services exclusively to the petitioners. Subsequently, respondent No,2 filed a complaint under section 33 of the Act of 1976 against the petitioners for getting the said establishment registered and a declaration to the effect that provisions of Act of 1976 were applicable to the said precincts. This complaint was resisted by the complainant on the above grounds as well as on the ground that by virtue of section 47 of the Act of 1976 the petitioners were exempted from registration under the Act of 1976 as it was a statutory establishment controlled managed and run by the Federal Government and that the hanger, kitchen and printing press were incidental to and connected with the main functions of the petitioner establishment namely, rendering air services both cargo and passengers' and were not independent units or establishment but part and parcel of the petitioners. It was further submitted that the kitchen could not by any stretch of imagination be treated as factory within the meaning of the section 2(j ) of the Factories Act.
3. ' The Adjudicating Authority, respondent No,2 did not accept the contentions to the above effect and came to the conclusion that the flight kitchen and the engineering department of the petitioners were to the governed by the Act of 1976 as both of them would fall within the definition of factory as provided in section 2(j) of the Factories Act, whereby the flight kitchen and the engineering department would come within the scope of clause (f) of section 47 of the Act of 1976, thus not entitled to claim the benefit of the proviso to section 47(f) of the Act of 1976 so as to be excluded from application of the Act of 1976. Respondent No,2 issued directions to the Employees Old--Age Benefit Institution (hereinafter referred to as "the Institution") to register the flight kitchen and the engineering department of the petitioners under the Act of 1976 and issue registration certificates accordingly. Feeling aggrieved and dissatisfied with the above order of respondent No,2, the petitioners assailed the same by way of an appeal before the Board of Trustees of the Establishment under section 35 of the Act of 1976. Before the Board of Trustees the petitioners raised the same objections and contentions as were raised by it before respondent No,2, which were also rejected by respondent No,1 concluding that both the parties and engineering department of the petitioners establishment fell within the definition of factory as defined in the Factories Act and the provisions of the Act of 1976 were applicable to the person employed therein.
4. Feeling aggrieved and dissatisfied with the above decision of respondent No,1, the petitioners have assailed the same by way of this Constitutional petition.
5. ' We have heard the arguments of Mr. Ch. Rasheed Ahmed, Advocate for the petitioners and Mr. M.A.M. Namazie, Advocate for the respondents. We have also perused the material on record as well as relevant provisions of the Act of 1976 and the Factories Act.
6. ' Mr. Ch. Rasheed Ahmed. Submitted firstly: that, the flight kitchen and the engineering department of the petitioners were part and parcel of the establishment as airline industry had to provide food not only to the passengers during its flight service but also to its crew members, who were responsible for the flight operations; and secondly that both the kitchen and the engineering department by very nature of work or the functions performed therein did not fall within the definition of factory so as to exclude the employees working therein from the benefit of section 47(f) of the Act of 1976. He further submitted that neither the cooking of food could by any stretch of imagination be treated as manufacture or manufacturing process nor the services rendered by the engineering department could be treated as manufacture or manufacturing process as the job of the engineering department was to maintain, repair and provide service facility to the planes of the petitioners and other equipment and instruments ancillary to and connected with the flight operation of the petitioners. In support of his contention that the kitchen could not be considered or treated as a factory so as to bring the employees working therein within the scope of clause (f) of section 47 he placed reliance on the case of Syed Muhammad Iqbal Hussain Shah v. Mst. Farhat Jehan and 2 others reported in 1991 CLC 1787. He further submitted that notwithstanding the fact that the flight kitchen of the petitioners was got registered by the petitioners under the Factories Act. It would not mean that the flight kitchen was a factory in the eye of the law and in support of his above contention he placed reliance on the case of Dentogene Laboratories Ltd., Karachi v. Sind Labour Appellate Tribunal and 3 others reported in 1978 PLC 196.
7. ' Mr. M.A.M. Namazie, Advocate appearing on behalf of the respondents vehemently controverted the arguments of Mr. Ch. Rasheed Ahmed and submitted that it was absolutely immaterial as to whether the flight kitchen and the engineering department were part and parcel of the petitioners establishment or were separate establishments, for determining whether they would be covered by the definition of factory as defined in section 2(j) of the Factories Act. He further submitted that for the purpose of deciding the above issue the determining factor would be the nature of the work carried on in the kitchen and the engineering department of the petitioner establishment and whether the nature of work carried on therein would be considered to the manufacturing process as required under section 2(j) of the Factories Act. In this connection he, submitted that the words "manufacture" and "manufacturing process" have not been defined in the Factories Act and, therefore, the ordinary meaning of the words "manufacture" and "manufacturing process" would have to be relied upon for the purpose of determining the nature of work carried on in the flight kitchen and the engineering department of the petitioners establishment.
8. ' For the purpose of determining the issues involved in this Constitutional petition, it wiP be necessary to find out the definition of the work "factory". Section 2(j) of the Factories Act defines "factory" as under: "Factory means any premises including the precincts thereof, whereon 10 or more workers are working, or were working on any date of the preceding 12 months and in any part of which a manufacturing process is being carried on or is ordinarily carried on with or without the aid of power, but does not include a mine, subject to the operation of Mines Act, 1923."
9. ' From the above definition it is to be noted that whenever in any premises including the precincts thereof a manufacturing process is carried on with the help of 10 or more workers with or without the aid of the power then such premises would fall within the definition of factory.
10. ' What now requires to be considered is whether a kitchen would come within the definition of "factory" as defined in the Factories Act. For determining this factum it will have to be established that the process of preparing food, food items and other articles in a kitchen would come within the definition of "manufacturing process" as provided in section 2(j) of the Factories Act. The words manufacturing process have not been defined in the Factories Act and, therefore, they will have to be given the ordinary meaning of the words in the English Dictionaries and the Legal Dictionaries.
11. The ordinary meaning of the expression "manufacture" and "manufacturing process" in various legal dictionaries is as under:-- ' The Revised Edition of the Chambers 21st Century Dictionary, first published in 1999 defines the words manufacturing process to mean:-- "to make something from the raw material, especially in large quantities using machinery; to invent or fabricate something; the practice, act or process of manufacturing process something."
12. ' The Book Law terms and phrases judicially interpreted, written by Sardar Muhammad Iqbal Khan Mokal defines the words "manufacturing process" on pages 575 and 576 as under:-- "1 To constitute manufacture, there must be a transformation of that article which is commercially different from the one which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable."
13. "2 Manufacture implies a change but every change is not manufacture, and yet to manufacture must mean to bring into being something in a form in which it will be capable of being sold or supplied in the course of business. The essential point is that something is brought into existence which is different from that originally existed in the sense that the thing produced is by itself a commercial commodity and is capable as such of being sold or supplied."
14. ' K.J. Aiyar in his book Judicial Dictionary, Twelfth Edition on pages 782 to 786 has produced the definition of the word "manufacture" as was given by the superior Courts of Indian jurisdiction in several decided cases as under:--
1. "The prevalent and generally accepted test to ascertain that there is 'manufacture' is whether the change or the series of changes brought about by the application of processes take the commodity to the point where, commercially, it can no longer be regarded as the original commodity but is, instead, recognized as a distinct and new article that has emerged as a result of the processes."
2. "To constitute 'manufacture', there must he a transformation of that article which-is commercially different from the one which is converted. The essence of manufacture is the change of one object to another for the purpose of making it marketable."
3. "Definition of word "manufacture" includes any process incidental or ancillary to manufacture of an article of food."
4. "The moment there is transformation into a new commodity commercially known as a distinct and separate commodity having its own character use and name, whether be it the result of one process of several processes 'manufacture' takes place and liability to duty is attached. So the process of bleaching, dyeing and printing etymologically also means manufacturing processes."
15. ' Ballantine's Law Dictionary, 3rd Edition on page 773 defines the word "manufacture" as under:-- "To make and fabricate from raw material or processed material by the hands, by art or by machinery, into a form fit and convenient for use."
16. ' Stroud's Judicial Dictionary, 5th Edition on page 1547 gives the following meaning to the "manufacturing process": "A large open-area quarry is not a "manufacturing process" within the Factories Act, but the testing of aeroplane propellers is it.
17. ' Black's Law Dictionary, 7th Edition defines the word "manufacture" as under: "A thing that is made or built by a human being distinguished from something that is a product in nature."
18. ' It now requires to be examined whether in the light of the meaning of the words "manufacture" and "manufacturing process" the process of cooking or preparing of food items which are either completely transformed from the raw material used and form an absolutely new and distinct products which are consumable as well as saleable can be said to the "manufacturing"/"manufacturing process". Several examples of a distinct and separate present being formed by subjecting the raw materials to cooking process can be cited. Milk, egg and sugar are used for preparing pudding, which is a distinct and separate product from the raw material used for making it and in itself is consumable and saleable. Another example is preparation of Kheer by subjecting rice, milk and sugar to cooking process, which is a distinct and separate product from the raw materials used for making it and in itself is consumable as well as saleable.
19. Another example which can be cited is that of cooking or preparation of Haleem from wheat, lentil and meat. The product Haleem prepared from the above raw materials used for making it is itself is consumable and saleable. A minute examination of the meaning of the expression "manufacture" and "manufacturing process" leaves no doubt in mind that in preparation of the above three products the process undertaken amounts to "manufacture"/ "manufacturing process" as different articles of raw material by the process of cooking are transformed into distinct and new articles which are commercially different from the articles used for making or converting it and the essence of manufacture which is the change of one object to another for the purpose of making it useable or marketable is very much present in the process of cooking of the aforesaid items. As a matter of fact there can be made many more examples of the above nature. For holding the process of cooking or preparation of pudding. Kheer and Haleem to come within the definition of expressions "manufacture"/"manufacturing process" reliance can be placed on the judgment of the Supreme Court in the case of Hirjina Salt Chemicals (Pak.) Ltd. v. Union Council, Gharo and others, reported in 1982 SCM R 522. In this case the Supreme Court declared that manufacturing sometimes means making an altogether new thing by using certain other things as components while at other times it may mean altering the nature of the raw material and cited example of making a Chapati out of flour or Khoya from milk. In the present case preparing or making of Pudding, Kheer and Haleem does not only amount to altering the nature of raw material as was the case in making of Chapati or Khoya but the aforesaid products are absolutely distinct and separate from the raw materials used for making them. As a result of the above discussion it is held that the process of cooking or preparation of food items carried on in the flight kitchen of the petitioners is the process of "manufacture"/"manufacturing process" within the meaning of the words appearing in section 2(j) of the Factories Act and that the flight kitchen comes within the.
20. Definition of factory. The pronouncement made in the case of Syed Muhammad Iqbal Hussain Shah v. Mst. Farhat Jehan and 2 others, (supra) relied upon by Ch. Rasheed Ahmed in support of his contention that the kitchen could not be considered of treated to be a factory is absolutely contrary to the pronouncement made by the Supreme Court and cannot be relied upon. Similarly the case of Dentogene Laboratories Ltd., Karachi v. Sind Labour Appellate Tribunal and 3 others, (supra) relied upon by Ch. Rasheed Ahmed in support of his contention that the mere fact that the flight kitchen of the petitioners was got registered under the Factories Act would not bring it within the meaning of factory is also of no help to the petitioners.
21. ' The next point which requires to be considered is whether the engineering department of the petitioners can be brought within the definition of factory, Ch. Rasheed Ahmed submitted that in the engineering department of the petitioner no manufacturing process is undertaken as no new products or spare parts are made and the sole purpose of the engineering 'department is to provide service, undertaking repairs and maintenance of aircrafts, the vehicle and equipment of the petitioners. He further submitted that for the above reason the engineering department would be exempted from application of the Act of 1976 in view of the proviso to clause (f) of the section
47. Mr. M.A.M. Namazie while controverting the above arguments of Ch. Rasheed Ahmed submitted that the engineering department of the petitioners does not provide service, maintenance and repair to the plans, vehicles and equipment of the petitioners only but also provides the said services to the aircrafts and equipment of defence forces which are maintained from time to time in the engineering department of the petitioners and in support of his above contention he drew our attention to a passage from the decision of the Adjudicating Authority dated 24-11-1995, wherein the Adjudicating Authority on the basis Of the statement made by the Advocate for the petitioners before it, held that aircrafts and equipment of defence forces were also maintained as the petitioners were directly under the Ministry of Defence. Mr. M.A.M. Namazie further submitted that the petitioners are a statutory body established by the PIAC Act by virtue of which it is an independent establishment governed by a Board of Directors headed by Chairman for managing the affairs of the petitioners and the mere fact 'that it is controlled by the Ministry of Defence would not equate it with the defence forces so as to claim that the services provided to the aircrafts and equipment of the defence forces are in fact services rendered for the petitioners. The contention advanced by Mr. M.A.M. Namazie merits consideration. The petitioners are an independent statutory establishment incorporated in pursuance of section 3 of the Pakistan International Airlines Corporation Act, 1956 (hereinafter referred to as "the PIAC Act"). By virtue of subsection (2) of section 3 of the petitioners are a body corporate by the name of the Pakistan International Airlines Corporation, having perpetual succession and a common seal with power, subject to the provisions of the PIAC Act, to acquire and hold property both movable and immovable and to carry out the functions and duties of the Corporation under the PIAC Act and shall by the said name sue and be sued. Section 4 of the PIAC Act lays down the functions of the petitioners-Corporation, which are as under:-- "4. Functions of the Corporation.---(1) It shall be the function of the. Corporation to take over the undertaking of the Orient Airways Limited hereinafter in this Act referred to as the "Said Company" and all such undertaking of the Central Government as were undertaken for the purposes of the Corporation and, subject to the provisions of the Aircraft Act, 1934, to provide and further develope safe, efficient, adequate economical and properly coordinated air-transport services, internal. As well as international; and the Corporation shall so exercise its power as to secure that air-transport services are developed to the greatest possible advantage in the interests of the country.
(2) Without prejudice to the generality of the powers conferred by subsection (1) the Corporation shall in particular have power,--
(a) to operate any air-transport service or any flight by aircraft for a commercial or other purpose, and to carry out all forms of aerial work;
(b) to provide for the instruction and training in matters connected with aircraft or flight by aircraft or persons. Employed or desirous of being employed either by the Corporation or by any other person;
(c) with the previous approval of the Central Government, to promote any organization outside Pakistan for the purpose of engaging in any activity of a kind which the Corporation has power to carry on;
(d) to acquire, hold or dispose of any property,, whether movable or immovable, or any air- transport undertaking;
(e) to repair, overhaul, reconstruct, assemble or recondition aircraft, vehicles of other machine and parts, accessories and instruments thereof or therefor and also to manufacture such parts, accessories and instruments, whether the aircraft, vehicles or other machines are owned by the Corporation or by any other person;
(f) to do all things incidental to or connected with any of the matter referred to in subsection (1) and in clauses (a) to (e)."
22. ' Section 5 of the PIAC Act provides that the general direction and the Administration of Corporation and its affairs will vest in the Board of Directors, which may exercise all powers and do all acts, which may be exercised or done by the Corporation.
23. ' Section 6 of the PIAC Act lay down constitution of the Board of Directors which will consist of 11 Directors of whom one will be appointed as Chairman of the Board.
24. ' From the aforesaid provisions of the PIAC Act it is established beyond any doubt that the Petitioners-Corporation is an independent statutory establishment having full power and authority to carry out the functions and duties entrusted to it by the PIAC Act and in performance thereof no limitations or restraints are placed. The Central Government has been empowered to issue directives to the Petitioners-Corporation on matters of policy but has no authority to interfere or dictate on matter which comes solely within the functions, duties, and powers of the Petitioners- Corporation. The mere fact that the Federal Government through the Ministry of Defence exercises certain restraints and has the authority to issue directives to the Petitioners-Corporation on matters of policy will not make the Petitioners-Corporation either subservient to the Federal Government or would bring it within the definition of an establishment or a limb of the Federal Government or a part of defence organization so as to be equated or be treated at par with the defence forces, as was submitted by Ch. Rasheed Ahmed and to treat the services rendered by it in relation to the servicing, repair and maintenance of the aircraft and equipment of the defence forces as functions and duties relating to the petitioners establishment. The services rendered by the Petitioners-Corporation in servicing, repairing and maintaining the aircrafts and equipment of the defence forces would be services rendered not for the petitioners establishment but for other organization/ establishment.
25. ' Reference may also be made to clause (e) of subsection (2) of section 4 of PIAC Act, according to which the petitioners establishment is to manufacture parts, accessories and instruments for the aircrafts, vehicles or other' machines as are owned by the Corporation or by any other person. Ch. Rasheed Ahmed was not able to make a categorical statement denying the assertions of Mr. M.A.M. Namazie that the engineering department of the Petitioners-Corporation is engaged in manufacturing parts, accessories and instrument not only for its air-crafts, vehicles and machines but also for the aircrafts vehicles and machines belonging to the defence forces. The material on record is not sufficient to establish conclusively whether such manufacturing process E is carried on in the engineering department of the Petitioners-Corporation or not as such, it cannot be held conclusively that manufacturing process is undertaken. However, the fact remains that the Petitioners-Corporation is providing service, repairs and maintenance for the aircrafts and other equipment belonging to the defence forces and this is sufficient to dis-entitle it from the benefit provided by the proviso to clause (f) of section 47 of the Act of 1976.
26. ' For the foregoing reasons and the discussions it is established beyond any doubt that both the flight kitchen and the engineering department are not entitled to claim exemption from application of the provisions of the Act of 1976 in view of clause (f) of section 47 of the Act of 1976. On the above view this petition was found to be without any substance which did not merit consideration. By a short order dated 22-10-2003 it was dismissed for reasons to be recorded later. These are the reasons for the said short order.
27. Petition.Dismissed.