DON BASCO HIGH SCHOOL vs THE ASSISTANT DIRECTOR, E.O.B.I. and others

ORDER

1. ' NAIMUDDIN, J.--This is a petition for leave to appeal from the judgment and order of the Lahore High Court, dated 8th October, 1988, passed in Writ Petition No, 4173 of 1988, whereby writ petition was dismissed in limine.

2. ' Before the High Court, the main plea that the petitioner school does not fall within the purview of the provisions of Employees' Old-Age Benefits Act, 1976, as amended, was not pressed in view of the judgments of the Lahore High Coiurt in the Writ Petition No,4178 of 1979, (Anjuman Faizul Islam (Registered), Rawalpindi v. Pakistan), decided on 30th October, 1979, Writ Petition No, 392 of 1986, (Nia Ali Garh Public School v. Employees' Old-Age Benefits Institution), decided on 23rd April, 1986, and Writ Petition No, 1430 of 1987, (Anjuman Madrassatul Banat, Lahore v. The Employees' Old-Age Benefits Institution and another) decided on 2nd October, 1988 and St. Jude's Secondary School and others v. Employees' Old-Age Benefits Institution and another PLD 1988 Kar.

473. However, it was urged. Before the High Court that sixteen out of twenty-one employees were drawing salaries of more than Rs,1,500 per month or were holding professional graduate or post- graduate degrees and as such the statute in question does not apply to the school. This plea was not allowed to be raised for the first time before the Court as neither it was raised before the respondent nor any record so as to substitute this plea was ever produced. Another ground urged before the Court that the petitioner was being discriminated as some of the schools are not being required to make contribution also did not find favour with the High Court as no such case was made out. The learned Advocate did not question these findings before us. He, however, pressed the same point before us which was not pressed by the petitioner before the High Court. Since we heard him on the point we would briefly deal with it. Mr. Shaukat Ali, the learned counsel for the petitioner submitted that petitioner's school was not covered by the term "establishment" as defined in the Employees' Old-Age Benefits Act, 1976. We would first reproduce the definition of the, term "establishment" as given in the Employees' Old-Age Benefits Act, 1976, after its amendment by Ordinance XVII, of 1983. It reads as follows: "Establishment" means:

(e) An establishment to which the West Pakistan Shops and Establishments Ordinance, 1969 (West Pakistan Ordinance No, VIII of 1969), for the time being applies, and, notwithstanding anything contained in section 5 thereof, includes clubs, hostels, organizations and messes not maintained for profit or gain and establishments, including hospitals, for the treatment or care of sick,- infirm, destitute or mentally unfit persons.

(v) ...................................... And includes any class of industries or establishments which the Federal Government may, by notification in the official Gazette, declare to be 'establishments' for the purpose of this Act."

3. ' It was contended by the learned counsel for the petitioner that the word "organization" used in the definition of the term "establishment" should be read to give colour of those words that proceed or follow it and, therefore, it will cover only those organizations which are in the nature of club, hostel or mess rendering material service, of like nature. In other words, he' relies on the doctrine of ejusdem generis. He submitted that the service rendered by the petitioner school does not fall within the nature of service contemplated by section 2(e) of the Act and, therefore, the petitioner cannot be treated as an "organization".

4. ' However, the doctrine will apply when there is nothing in the A provision or Act to show a wider sense was not intended or the intention to give to the general term a broader meaning than the doctrine requires was not manifested.

5. ' According to 'Maxwell on the Interpretation of Statutes, 12th Edition, page 297, it is a well- established rule in the construction of statutes that "general terms following particular ones apply only to such persons or things as are ejusdem generis with those comprehended in the language of the Legislature; R. V. Cleworth (1864) 4 B. & S.927, per Cockburn C.J. At 932. In other words, the general expression is to be read as comprehending only things of the same kind as that designated by the preceding particular expressions, unless there is something to show that a wider sense was intended (emphasis supplied)". Reference is made by the author to R. v. Edwardson (1859) 28 L.J.M.C. 213).

6. ' According to Corpus Juris Secundum, Volume 82, page 658, the rule or doctrine of 'ejusdem generis' will apply unless intention to the contrary is clearly shown. The relevant passage may be quoted here. It reads: "Where general words follow the enumeration of particular classes of persons or things, the general words, under the rule or maxim of construction known as 'ejusdem generis,' will be construed as applicable only to persons or things of the same general nature or class as those enumerated, unless nn intention to the contrary is clearly shown." (underlining is ours)

7. ' J. G . Sutherland, in his book 'Statutes and Statutory Construction', (Third Edition) in section 4910, at page 400 has stated that the doctrine applies when the following five conditions exist:

(1) the statute contains an enumeration by specific words:

(2) the members of the enumeration constitute a class;

(3) the class is not exhausted by the enumeration;

(4) a general term follows the enumeration; and

(5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires.

8. ' Therefore, it is necessary to examine the definition of the term "establishment" as given in section 2(e) of the Act. Firstly, it covers establishments to which the West Pakistan Shops and Establishments Ordinance 1969, applies. The Shops and Establishments Ordinance applies to a shop, commercial establishment, industrial establishment, private dispensary, maternity home, residential hotel, restaurant, eating house, cafe, cinema, theatre, circus or other place of public amusement or entertainment and such other establishment or class thereof as Government may by notification in the official Gazette declare to be establishment. But by virtue of the provision of section 5 of the Ordinance, clubs, hostels, and messes not maintained for profit or gain; and establishments for the treatment or care of the sick, infirm, destitute or mentally unfit persons; are excluded from its purview. It seems from the definition of establishment as given in the Ordinance that it is intended to apply for the -purpose of the Ordinance to establishments, where dealings are made or services rendered or public is entertained with the object or for purposes of profit or gain.

9. But under the Employees' Old-Age Benefits Act, which is a beneficial Act, the definition of establishment as given in the West Pakistan Shops and Establishments Ordinance has been broadened and it specifically includes establishments, places or organizations where services are rendered or which are not maintained for profit or gain such as club, hostel, mess and other organization which are otherwise excluded from the purview of West Pakistan Shops and Establishments Ordinance, 1969, as stated hereinbefore. Therefore, the intention seems to apply the Act to any institution even not maintained for earning profit or gain.

10. ' Then in the definition of "establishment" as given in the Act, before the words, clubs, hostels, organizations and messes word "includes" is used which enlarges the scope and meaning of the word "establishment". It will include petitioner school as the word "include" is generally used in the interpretation clauses in order to enlarge the meaning of the words and phrases occurring in the body of the statute; M/s, Usmania Glass Sheet Factory Limited, Chittagong v. Sales Tax Officer, Chittagong PLD 1971 SC 205. Reference may also be had to Dilworth v. Newzealand Commissioner of Stamps 1899 AC 99, wherein the meaning of the word "include" is stated as follows: "The word 'include' is very generally used in interpretation G clauses in order to enlarge the meaning of words or phrases occurring in the body of the statutes."

11. ' Further, the word "organization" in itself is broad enough to include school. According to Black's Law Dictionary word "organization" includes a 'corporation, Government or Governmental sub- division or agency, business trust, estate, trust, partnership or association, two or more persons having a joint or common interest, or any other legal or commercial entity." This covers petitioner school.

12. ' This word was considered by this Court also in the case of Kohinoor. Chemical Co. Ltd. v. Sind Employees' Social Security (PLD 1977 SC 197) and it was observed as follows: "In its literal sense an organization connotes a systematic arrangement for a definite purpose. In the legal sense it describes a system, a body or a society furnished with organs for the normal exercise of its appropriate functions."

13. ' An 'organization' need not fall within the class of clubs, hostels, or messes as hospitals for treatment or care of sick, infirm, destitute or mentally unfit persons is also brought within the purview of the Act by virtue of the definition of "establishment". Accordingly petitioner school falls "within the mischief of the Act.

14. ' It was, however, submitted by the learned counsel that the Act is a fiscal statute as it imposes monetary liabilities, therefore, its provisions should strictly construed. The submission is without any substance as the Act is not a fiscal statute. The Act is a beneficial or remedial statute intended to provide security and benefit to the old-age employees of industrial, commercial or other organizations covered by it. It is, therefore, to be construed liberally in order to advance the remedy. In case of Kohinoor Chemical Co. Ltd. v. Sind Employees' Social Security (PLD 1977 SC 197), it was observed by this Court about the nature and the principle as to interpretation of such a legislation as follows:- "There is no doubt that we are dealing with a beneficial or remedial legislation conceived as a means of ameliorating the lot of the working class, and as such it would be in keeping with the accepted principle of interpretation, as observed in Divisional Superintendent, P.W.R., Karachi v.

15. Bashir Ahmad (PLD 1973 SC 589) that it should be so construed as to advance the remedy and suppress the mischief, or else it would frustrate the legislative intent. It would appear, therefore, that, in keeping with the object of the legislation, as wide an interpretation should be placed on the terms 'employee' and 'establishment' as permissible within the language employed in the statute."

16. ' It was then submitted by the learned counsel for the petitioner that the petitioner school is not run for profit or gain. This could not be the reason for excluding petitioner school because clubs, hostels and messes though not maintained for profit or gain are also included as stated in the definition itself.

17. ' It was lastly submitted that in the case of St. Jude's Secondary School and others (supra) on which the Lahore High Court relied in the impugned judgment, the Sind High Court has not considered the Education Code which provides necessary benefits to the teachers etc. Reference to this Code, in our view, is irrelevant for nowhere in the Employees' Old-Age Benefits Act, reference is made to such Code or the benefits under the Act have been made dependent on non-availability or availability of similar benefits under the Code. Further, learned counsel for the petitioner failed to point out any provision in the Code whereunder such benefits as provided under the Act to have been provided to the teachers and other employees of schools covered by the Act, which even if provided, in our opinion, would not have absolved the petitioner from the liability to pay contribution under the Act as thereunder it is for the Social Security Institution to provide such benefits.

18. ' We are of the view that the point now raised before us was not rightly pressed before the Lahore High Court, inter alia, in view of the judgment of the Sind High Court in the aforementioned case which was correctly decided.

19. ' We may mention that the counsel referred to the definitions of the word "establishment" in various other statutes. We, however, found no ambiguity or difficulty in understanding the clear provisions of section 2(e) of the Act and therefore, in our opinion, reference to definitions in other statutes was unnecessary.

20. ' We, therefore, find no merits in this petition and accordingly dismiss it.