BOARD OF INTERMEDIATE AND SECONDARY EDUCATION, GUJRANWALA Versus REGISTRAR OF TRADE UNIONS GUJRANWALA

The Board of Intermediate and Secondary Education, Gujranwala, through its Chairman, has filed this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, calling in question an order passed by the Registrar, Trade Unions, Gujranwala, on 13th April, 1992, whereby he proceeded to register respondent No. 2 as a Trade Union, formed by the employees of the Board of Intermediate and Secondary Education, Gujranwala.

2. The learned counsel ‑for the petitioner, in support of this petition has contended that the petitioner Board is not an `industry' within the meaning of Industrial Relations Ordinance, 1969, and, therefore, its employees cannot form a trade union nor can the same be registered under the law. The learned counsel maintained that the petitioner‑Board has been formed for the purpose of regulating the Intermediate and Secondary Education and is not rendering any material‑ services as is evident from the provisions of the Board of Intermediate and Secondary Education Act, 1976.

3. The learned counsel appearing on behalf of the Gujranwala Education Board Employees Union, Gujranwala, respondent No. 2 herein has, however, defended the impugned order of the Registrar by contending that the Board is an establishment and an industry, within the meaning of Industrial Relations Ordinance, 1969 and, therefore, respondent No. 1 was fully justified in granting it the registration.

4. According to section 7(2) of the Industrial Relations Ordinance, 1969, a trade union cannot be registered unless its members are workmen actually engaged or employed in the industry with which a trade union is connected. It. therefore, becomes necessary to examine as to whether the petitioner is an industry within the meaning of Industrial Relations Ordinance, 1969.

5. Industry has been defined in section, 2(xiv) of the Ordinance, as meaning any business, trade, manufacture, calling, service, employment or occupation. In order to show that the petitioner is not an `industry' the learned counsel maintained that the petitioner Board has been set up with a view to regulate and promote education and the services being rendered by it cannot be considered to be in the nature of a business or trade nor can the said services be termed as material services. Learned counsel has relied upon K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others (PLD 1976 Lahore 1097), to contend that the words calling, service and occupation in section 2(xiv) of the Ordinance, must be read ejusdem generis with the preceding words, namely, trade, business and occupation. Reference has also been made to the recent judgment of this Court in Lahore Development Authority and others v. Abdul Shafiq and others (1992 PLC 1214).

6. The learned counsel for the respondents, on the other hand, has argued that the definition of the `industry' as given in the Industrial Relations Ordinance, 1969, is very wide and there is no occasion to restrict its scope ,and meaning by applying the principle of ejusdem generis. It was pointed out by the learned counsel that the view taken by the K.G. Old's case supra (PLD 2()761 Lahore 1097). was not approved by the Division Bench of this Court in Superintending Engineer (H.O.) Irrigation, Lahore Zone and another v. Punjab Labour Appellate 'Tribunal and another (1987 PLC 180). Reference has also been made to E.O.B.I. Employees Federation v. Messrs Employees Old Age Benefits Institution (1985 PLC 891), Banglore Water Supply and Sewerage Board v. A. Rajppa (AIR 1978 SC 548), Don Basco High School v. The Assistant Director E.O.B.I. and others PLD 1989 SC 128 and St. Jude's Secondary School and others v. Employees Old‑Age Benefits Institution and another (PLD 1988 Kar. 473).

7. The question as to what constitutes an industry, within the meaning of the Industrial Relations Ordinance, 1969, and what are the tests for finding: out whether establishments qualify for being an `industry', was examined at length by this Court in a recent judgment reported as Lahore Development Authority and others v. Abdul Shafiq and others (1992 PLC 1214). After survey of the case‑law on the subject and respectfully following the dictum of Shafiur Rahman, J. (as his Lordship then was) in K.G. Old's case supra, it was pointed out that the test for determining as to whether an establishment is the industry are as follows:‑‑

(i) that the enterprise in question must be organised and systematic;

(ii) that it should depend substantially if not entirely on cooperation between labour and capital;

(iii) that its object should be production, distribution and consumption of wealth and production of material services;

(iv) that the main object for formation of enterprise or any part thereof should be considered and incidental, ancillary or adjunct purposes are not relevant, and

(v) that profit making may not be the object for running the enterprise.

8. Applying the aforesaid test in the present case, it would be seen that the Board of Intermediate and Secondary Education cannot be considered as being an industry as the object for its formation is not production, distribution or consumption of wealth or production of material services. On the other hand, as is evident from the provisions of the statute under which it was constituted under the Punjab Board of Intermediate and Secondary Education Act, 1.976, the objects for which the petitioner‑Board has been established are to organise, regulate, develop and control the Intermediate Education and Secondary Education and to hold and conduct examinations pertaining to Intermediate 'and Secondary Education. Thus, it is evident that the services being rendered by the petitioner are not material services, but are geared towards promoting education and skill.

9. The view which I have taken finds full support not only from the judgment of Shafiur Rahman, J. (as his Lordship then was) in K.G. Old's case supra, but also from the judgment of the Sindh High Court in Employees' Union Jamia, Karachi v. Registrar of Trade Unions Sindh and 2 others (1981 PLC 403) and also from decision of this Court in the Managing Committee, Attock Industrial School v. Presiding Officer, Punjab Labour Court No. 2, Lahore and another (1985 PLC 936).

10. It needs to be noticed that K.G. Old case was heard alongwith 4 others writ petitions, one of which was Writ Petition No. 977 of 1974, in which employees of the Board of Intermediate and Secondary Education, Sargodha, had formed themselves into a trade union and the question was as to whether they are entitled to be registered as such, while the other cases related to employees of the University of the Punjab. After considering the provisions of University of the Punjab Act, 1973 and Ordinance No. VII of 1968 under which Sargodha Board of Intermediate and Secondary Education, has been set up this Court came to the conclusion that neither the University nor the Board was an industry.

11. In the second case cited above, namely, Employees' Union Jamia, Karachi v. Registrar of Trade Unions Sindh and 2 others (1981 PLC 403), the question before the Sindh High Court in the two petitions, which were heard together was whether the University of Karachi and Board of Intermediate and: Secondary Education, Karachi, could be termed as `industry' within the meaning of the Industrial Relations Ordinance. In that context it was observed that:‑‑

"The words `industry' and `service' are capable of various interpretations which may differ according to one approach, notions, socio‑economic consideration and ideology. Not as these word', find place in statute called Industrial Relations Ordinance which primarily relates to material and economic activity they have to be interpreted in the same colour and scheme of things. Therefore, only that service which is material in nature and is the outcome of an organized economic activity in continuity with the cooperation of the workers and management will be treated as industry":

12. So far as the contention of the learned counsel for the respondent No: 2 that the principle of ejusdem generis cannot be applied while construing the definition in section 2(xiv) of the Ordinance, it is correct that the Division Bench of this Court in Superintending Engineer (H.Q.) Irrigation Lahore Zone and another v. Punjab Labour Appellate Tribunal and another (1987 PLC 180) had taken a view different from K.G. Old's case but I am in no position to follow this judgment in view of the authority of the Supreme Court in A.F. Furguson & Co v. Sindh Labour Court and others (PLD 1985 SC 429), wherein the ratio laid down in K.G. Old's case was approved, as is obvious from the following passage appearing at page 433 of the report:‑

"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 Judge 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 his 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, Lahore Court No. 3, Lyallpur etc. (Writ Petition No. 74 of 1976)."

In the same authority, the‑view of the Division Bench of the Sindh High Court in Employees' Union Jamia, Karachi v. Registrar of Trade Unions Sindh and 2 others (1981 PLC 403) was also cited with approval. That being so, the observations of the Division Bench in Superintending Engineer (H.Q.) Irrigation Lahore Zone and another v. Punjab Labour Appellate Tribunal and another (1987 PLC 180) place into insignificance. It is also to be noted that the Division Bench in the aforesaid case of Superintending Engineer (H.Q.) Irrigation Lahore Zone, supra, had approved the judgment of E.O.B.I. Employees Federation v. Messrs Employees' Old‑Age Benefits Institution (1985 PLC 891), but neither the case before the Division Bench nor before the National Industrial Relations Commission related to an educational institution.

13. So far a the case of Don Bosco High School v. The Assistant Director E.O.B.I. and others (PLD 1989 SC 128), it elucidates the general rules about applicability of principle of ejusdem generis. It is also to be noticed that in this authority, the Supreme Court of Pakistan, was pleased to approve the view taken by the Sindh High Court in St. Jude's Secondary School and others v. Employees' Old‑Age Benefits Institution and another (PLD 1988 Kar. 473), which has also been cited by the learned counsel for respondent. Both these cases are clearly distinguishable as those arose out of proceedings under the Employees' Old‑Age Benefits Act, 1976. In St. Jude's case supra, the Sindh High Court itself noted the distinction between `industry' as defined in the Industrial Relations Ordinance and an `establishment' within the meaning of Employees' Old‑Age Benefits Act, 1976, as is obvious from page 481 of the report.

14. From the above discussion, it follows that the petitioner is not an `industry' within the meaning of the Industrial Relations Ordinance, 1969. Consequently, as its workers are not employed in any industry, the union formed by them could not have been registered by the Registrar of Trade Unions under section 10 of the Industrial Relations Ordinance, 1969.

In view of what has been stated above, this petition is allowed and registration of respondent No. 2, as a trade union by respondent No. 1 is declared to be without lawful authority and of no legal effect.

No order as to costs.

H.B.T./B‑63/L Petition allowed.