A. F. FERGUSON & Co. vs THE SIND LABOUR COURT AND ANOTHERs

1. ' NASIM HASAN SHAH, J.- The facts relevant for the disposal of this appeal, briefly stated, are that the appellant, namely, A. F. Ferguson & Co. Is a firm of Chartered Accountants, carrying on its profession in Karachi and elsewhere with its Head Office at Karachi. It is governed by a Statute, namely, Chartered Accountants Ordinance, 1961. It has a large staff which has formed a Trade Union. This Trade Union is the 2nd respondent in this appeal. The appellant-firm does not recognise it and contends that it is a self-styled Trade Union.

2. ' The 2nd respondent presented a charter of demands on 5-3-1973 to the appellant-firm under section 26 of the Industrial Relations Ordinance, 1961 (hereinafter referred to as the Ordinance). The said demands were rejected by the appellant-firm on 8-3-1973 on the grounds that the appellant- firm is neither an "industry" under the Ordinance nor the 2nd respondent is competent to make demands under the Ordinance.

3. ' Under section 26(2) of the Ordinance, the 2nd respondent served a strike notice on the appellant- firm by its letter dated 21-3-1973 but the said notice was also repudiated by the appellant-firm on 24-3-1973. Conciliation proceedings were then instituted under the Ordinance which were held on 27-3-1973 and 5-4-1973 but, according to an undated order of the Conciliation Officer, these failed because the appellant-firm refused to discuss the demands of the 2nd respondent. The 2nd respondent thereafter filed an application before the 1st respondent (the Vth Sind Labour Court, Karachi), under section 32(1)(a) of the Ordinance together with a statement of its claim against the appellant-firm. A notice was issued to the appellant-firm by the said 1st respondent on 26-4-1973 but the appellant-firm treated the notice coram non judice and filed a Constitutional Petition (No, 531 of 1973) in the High Court of Sind and Baluchistan at Karachi on 8-5-1973, questioning thereby the jurisdiction of the 1st respondent to entertain the dispute.

4. ' Various contentions were raised on behalf of the appellant-firm before the learned Judges of the High Court including (1) that the appellant-firm is engaged in the liberal and learned profession of Chartered Accountants like that of Law or Medicine and as such it is not an "industry" as defined in the Ordinance ; (2) that the 2nd respondent had no locus standi to raise the industrial dispute qua appellant-firm as it was not legally constituted as per section 7(2) of the Ordinance ; and (3) that it was not qualified as a Collective Bargaining Agent.

5. ' The 2nd respondent contested the Constitutional Petition before the High Court and submitted, inter alia, that (1) even if the appellant-firm was a profession and was regulated by the Chartered Accountants Ordinance, 1961, it was a commercial establishment and carried on an "industry" within the meaning of the Ordinance ; (2) that the 2nd respondent having been registered as a Trade Union, acquired full legal rights and was authorised under section 7(2) of the Ordinance to agitate the matter and its members were "workmen" within the meaning of section 2(xxviii) of the Ordinance and (3) that the 2nd respondent being the only Union in the appellant-firm was the Collective Bargaining Agent. It was also urged that the Constitutional Petition filed by the appellant-firm in the High Court was premature. The 1st respondent in issuing the notice to the appellant-firm to appear before it, in response to the industrial dispute before it was not coram non judice but the appropriate authority to adjudicate the industrial dispute.

6. ' A learned Division Bench of the Sind High Court was pleased to dismiss the Constitutional petition vide its judgment dated 21-12-1973 holding that the profession of Chartered Accountants which was being conducted by the appellant-firm constituted an "industry" within the meaning of clause

(xiv) of section 2 of the Industrial Relations Ordinance, 1969 ; the 2nd respondent had the locus standi to raise and maintain the industrial dispute. It was also held that the question whether the 2nd respondent was qualified as Collective Bargaining Agent raised a disputed question of fact and cannot be decided in the Constitutional jurisdiction of the High Court. The constitutional petition in the High Court was, however, held to be maintainable since the appellant-firm had challenged the jurisdiction of the Labour Court (1st respondent) on grounds which involved a question of wide public importance.

7. The appellant-firm feeling dissatisfied with the above order moved this Court for leave to appeal which was granted mainly for considering the question "whether the profession of Chartered Accountancy is al "learned profession, indistinguishable from the legal profession and has the same high standard of professional ethics as in the legal profession and, therefore, is not covered by the definition of "industry" as defined in section 2(xiv) of the Ordinance". Meanwhile, the proceedings before the 1st respondent, namely, the Vth. Sind Labour Court, Karachi, were allowed to continue but it was directed not to pass final orders till the disposal of the appeal .

8. ' The reason given by the learned Judges of the Sind High Court for holding that the appellant-firm fell within the definition of an "industry" was that the term "industry" as defined in clause (xiv) of section 2 of the Ordinance (as amended) had a very wide amplitude in that according to this clause, "industry" had been defined to mean "any business, trade, manufacture, calling, service, employment or occupation" without any qualification whatever.

9. ' Dealing with the argument that the meaning of the word "industry" should be curtailed so as to exclude learned profession, the learned Judges referred to the definition of the word "industry" in section 2( j ) of the Industrial Disputes Act, 1947, which meant :- "any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen." and pointed out that while this definition of "industry" was retained both in the Industrial Disputes Ordinance, 1959 and the West Pakistan Industrial Disputes Ordinance, 1968 and even in the Ordinance of 1969, as originally enacted (except for the addition of four inclusive clauses in order to clarify that mining, transport and the other matters specified in these clauses were industrial), its definition as substituted in 1970 by amending the Ordinance of 1969 marked a complete break with the past and manifested the concern of the legislature for the welfare of workmen. It was observed that "the Legislature having altered the definition of industry deliberately, it would be defeating its intention if the meaning of the new definition was construed by reference to the old definition and the decisions given on it". It was further held that as the words used in section 2(xiv) of the Ordinance and specially the words "calling" and "occupation" were according to their dictionary meaning wide enough to include all the professions. Hence, it would not be possible to curtail their effect in order to exclude the learned professions. On this view of the matter, it was found that the appellant-firm was an industry within the meaning of the Ordinance and the appellant's objection to the jurisdiction of the Labour Court (the 1st respondent) was held not to be well-founded.

10. ' We observe that after the above judgment was delivered, the Lahore High Court as well as a Bench of the Sind High Court has dissented from the view taken by the learned Judges that the dictionary meaning was to be given to the words mentioned in clause (xiv) of section 2 of the Ordinance and that its amplitude could not be curtailed by reference to the old definition of the word "industry". In K. G. Old v. Presiding Officer, Punjab Labour Court and others (1), Mr. Justice Shafiur Rehman (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 co-operation 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 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.

11. ' Again, a Bench of the Sind High Court consisting of Mr. Justice Zaffar Hussain Mirza (now a Judge of this Court) and Mr. Justice Salim Akhtar in the case of Employees' Union, Jamia Karachi v.

12. Registrar of Trade Unions, Sind and others (2), 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 i. That the respondent No, 2 had no locus standi to raise and maintain an industrial dispute as required under the Ordinance ; and ii. That respondent No, 2 was not qualified as a Collective Bargaining Agent."

13. ' 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

(1) PLD 1976 Lah. 1097 (2) 1981 PLC 403 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 fight 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.

14. 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 B they could only be decided by the- Labour Court. Hence, this was a fit case in which all questions falling for determination should have been-tried and determined in the first instance by the Labour Court itself. Respondent No, 2, indeed, did raise an objection to the effect that, in these circumstances, the constitutional petition was not competent, but it was overruled and the constitutional petition was held to be maintainable on the view that the question involved was whether the Labour Court had not usurped jurisdiction in the case and that the said question was wide public importance. It was, however, overlooked that in so holding its effect would be that while some questions stood determined by the High Court, others would still remain for decision by the -Labour Court. c 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. Haft Ahmad Khan and another (1), Ibrahim v. Muh mmad Hussain (2) and Nanheial and another v. Umrao Singh (3). In the circumstances of the present case the prayer for exercising constitutional jurisdiction of the High Court should, therefore, have been declined. We are, accordingly, of the opinion that the objection raised by respondent No, 2 that the constitutional petition was premature should have prevailed and the constitutional petition dismissed on the said ground. The ultimate order passed by the High Court dismissing the constitutional petition does not, therefore, require any alteration. But this does not imply that we are in agreement with the view taken by it that the appellant-Company) constituted an "industry".

15. ' It may be recalled that after the dismissal of the constitutional petition by the High Court the Labour Court resumed hearing of the matter and has, we understand, already completed the recording of the evidence of the parties but desisted from passing final orders in view of the direction given by this Court not to do so till the decision of the present appeal. Now that, the appeal has been finally decided by this Court, the Labour Court should proceed to decide the dispute raised before it by respondent No, 2, as also the objections raised by the appellant-firm against its maintainability and to pass final orders in the it of the relevant law as at present existing, the evidence recorded by it and the observations made above.

16. ' The upshot is that this appeal fails and is dismissed. The parties, however, are left to bear their own costs.

17. (1)PTD 1983 SC 21 (2) PLD 1975 SC 457

(3) AIR 1931 P C 33