1995 PLP 134 (PLC)

(a) who is employed mainly in a managerial or administrative capacity, or (b) who, being employed in a supervisory capacity draws wages exceeding rupees eight hundred per mensem or performs, either because of the nature of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature. Activity undertaken by the Government in the interest of socio‑economic progress of the country as‑beneficial measures are not exempted from the operation of this Act. The West Pakistan Establishment Ordinance applies to shops, commercial establishment, industrial establishments, private dispensaries, maternity homes, residential hostels, restaurants, eating house cafe, Cinemas, theatres or other places of establishment where the Government by Notification declared it to be the establishment. The activity must be organized and arranged and the condition of cooperation of the employer and the employees must be the object to render material assistance to the community. The word "undertaking" means a character of activities which is conducted irrespective of the fact whether it is conducted for profit or no profit. In The Management of Municipal Committee v. The General Secretary, Municipal Muharrirs' Union and another (PLD 1968 Lah. 395), it was held that the Municipal Committee is an industry in respect of non‑regal functions (other than those of tax collecting). Industrial disputes can be raised between the Municipal Committee and its employer within field of `non‑regal" functions, while other activates of Municipal Committee such as making, preparing roads, sanitation and conservancy running hospitals and schools which does not pertain to regal functions of the Government and can be undertaken by the private concern of individuals as well they are, therefore, an undertaking and can be classed as Industry, while the function of levying and collecting the taxes which are only performed by the functionaries, the workmen who are engaged by the Municipal Committee to perform the functions which are in the nature of regal or the sovereign functions of the Government and have been delegated to the Committee will not fall within the category of workman. In Don Basco High School v. The Assistant Director, E.O.B.I. and others (PLD 1989 SC 128), it was held that the organization itself being broad to include school in the definition of establishment. In K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court and others (PLD 1976 Lahore 1097), it was held that the object production, distribution and consumption of wealth in an enterprise as a whole is to be looked at to find out its raison d'etre and any part which is incidental ancillary of an adjunct cannot determine the character as a whole. The industry within the definition of section 2 of the Industrial Relations Ordinance means any business, trade manufacture calling service employment occupation. The original character of calling service has not been retained and they have been directly called industry without seeing there is any element of business, trade or manufacturing them according to the definition not only the business, trade manufacture can be called as an industry in the special terms in which industry is defined but calling service, employment as occupation will also be industry. The industrial disputes when occur in relation to operation of capital and labour are contributed in cooperation for the satisfaction of human wants or desires. It excludes the legal and medical professions because they are not carried by the co‑operation, capital and labour. It was further held that the industry must bear the definite character of trade or business or manufacture or calling and it must be capable of being described as an undertaking in material good and material service. The material service involves the activity carried through the cooperation between the employer and the employee. In Ghulam Ghous v. District T.B. Association, Lyallpur (1976 PLC 79), it was held that the charitable institutions arc neither an industry nor commercial establishment. In Hakimullah Khan v. Secretary, Pakistan Red Cross Society, Karachi (1975 PLC 99), .it was held that the Red Cross Society does not come within the purview of industry. In Rawalpindi Club, Rawalpindi v. Registrar of Trade Unions and others (1989 PLC 760), it was held that test for determining whether a human activity or human enterprise could be deemed as an industry or not: (i) The words `industry, business, trade, manufacture' are not to be given dictionary meanings. These words are of wide reach and no hard and fast rules can be laid down as to whether an activity or enterprise is industry or not. (ii) `Industry' is a systematic human activity or enterprise in which labour is employed by the employer for the purpose of conducting business as a means of livelihood, earning profit or for rendering material service to the community with the active participation of the workmen. In this activity, labour and service is provided by workmen while the capital is provided by the employer. (iii) The human activity must not be causal or for recreation. It must. not be for a pleasure. It must be carried out by the workmen and employer for the purpose indicated above. The human activity is carried out by the workmen at the behest of their masters who are to undertake the task of organization and are to provide the necessary means for carrying out the activities. (iv) The earning of the profits in this activity is not essential. It may even provide material service to the community in an organized manner: The same view was taken in Ghee Corporation of Pakistan v. Registrar, Trade Unions and another (1991 PLC 207).

6. As far as the question of industry is concerned I have seen that the petitioner (Idara‑e‑Kissan) is a registered Society and it does generate income, it is possessed with the capital and there is systematic‑activity undertaken for the production and distribution/selling the milk and also it renders the material service to the community at large. It is easily termed as an undertaking within the purview of the Industrial Relations Ordinance because any enterprise which has the productive or distributing and consuming the self‑capacity it can be termed as an industry because it is a systematic arrangement for a definite purpose. For these reasons I hold that Idara‑e‑Kissan is running a factory which is meant for producing and selling milk which means that it also possesses a class of operation in which all persons i.e. the employer and the employees are engaged. So, it is an industry within the purview of the provisions of section 2(xiv) of the I.R.O. So far as the next question of notice to the employees is concerned, the definition of the employer in the IRO given in section 2 in relation to an establishment means any person or body of persons, whether incorporated or not, who or which employs workmen in the establishment under a contract of employment and includes‑‑ (a) an heir, successor or assign as the case may be, of such person or body as aforesaid; (b) any person responsible for the management, supervision and control of the establishment; (c) in relation to an establishment run by or under the authority of any department of the Federal Government or Provincial Government, the authority appointed in this behalf or, where no authority is appointed, the Head of the Department; (d) in relation to‑an establishment run by or on behalf of a local authority, the officer appointed in this behalf or where no officer is so appointed, the Chief Executive Officer of that authority; Special Provision‑‑For the purpose of distinction from the category of "worker or workmen" officers and employees of a department of the Federal Government, or a Provincial Government, or a local authority, who belong to the superior managerial, secretarial directional, supervisory or agency staff and who have been notified for this purpose in the official Gazette shall be deemed to fall within the category of employers. (e) in relation to any other establishment, the proprietor of such establishment and every director, manager, secretary, agent or officer or person concerned with the management of the affairs thereof. The "industrial dispute" means any dispute or difference between the employers and employers or between employees and workmen or between workmen and workmen, which is concerned with the employment or non -employment or the terms of employment or the conditions' of work of any person and is not in respect of the enforcement of any right guaranteed or secured to him by or under any law, other than this Ordinance, or any award or settlement for the time being in force. Under section 7(2) of the I.R.O. there is no provision of giving any notice to the employer but the real facts are that it is not possible to comply with the provision of this section without associating in the proceedings the employer and the union or unions already in existence. Without hearing the employer if the Union is registered this will be violative of the principle of natural justice and social justice because of member whether they are workmen or not or actually engaged and employed in the industry with which trade union is connected. The requirement of registration of union means that if there are two more unions then new union must possess 1/5th of the total number of the workmen employed in such establishment as its members. It is, therefore, statutory duty of the Registrar to find out whether there is union or unions already in existence in the establishment of the Industry. It is again not possible to correctly ascertain the true facts without associating the establishment or industry. Moreover the basic requirement of this section for registration of union cannot be achieved without associating the employer as held in the Punjab Agricultural Development and Supplies Corporation Employees Welfare Union (C.BA) v. Registrar, Trade Unions, Bahawalpur Region and others (1991 PLC 38) and other chain of authorities of the superior Courts, Therefore, the employer is entitled to notice of hearing by the Registrar before an application for a new trade union is granted. A is to avoid misstatement or withdrawal of material facts so as to enable the Registrar to conclude the matter according to law and in view of Social Justice . In E.O.B.I. Employees Federation's case, it was held that the employers has no locus standi to challenge the legality of registration of the union. Since the procedure of not joining the employer at the time of registration of the new trade union is violative of the principle of natural justice and also not within preview of section 2 of the Industrial Relations Ordinance, 1969 the intention of legislature is very clear. The employer being a necessary party is entitled to a right of hearing by the Registrar while registering a new, trade union.

7. In view of my above observation, I partly accept this writ petition and set aside the order dated 8‑11‑1990 for the issuance of certificate of registration of trade union and remand this case back to the Registrar of Trade Unions, Lahore Region, Lahore to give an opportunity of hearing to the petitioner‑ C employer before issuing a fresh certificate of registration to the new trade union. He is further directed to conclude the matter within two months of the passing of this order after giving due opportunity of hearing to the petitioner as well as the trade union or trade unions as the case may be.

8. There shall be no order as to costs. AA./1‑125/L Petition accepted.