1995 PLP 494 (PLC)

3. The learned counsel for the petitioner raised two‑fold argument. It was argued that the petitioner is not covered by Act of 1976, therefore, all the proceedings of the respondents are without jurisdiction and ultra vires of the statute. The second argument is that an `establishment' can be required to make the payment of contribution in respect of those employees, who are eligible to any‑benefit under Act of 1976. It is submitted that the petitioner is employing some workers on regular basis while the others are just casual workers. It is explained that the races are held only on Friday and Sunday in a week and in those days number of persons are employed for race hours only. They are neither regular employees nor paid salary on monthly basis. It is added that there is difference between `tax' and `fee'. In this behalf, the learned counsel has referred to sections 3 and 22 of Act, 1976 and case of Kohinoor Chemical Co. Ltd. and another v. Sindh Employees' Social Security Institution and another (PLD 1977 SC 197).

4. On the other hand, the learned counsel for the respondents argued that the petitioner is an establishment and fully covered by the provisions of Act, 1976. The learned counsel in this behalf has referred to section 2, subsections (bb) and (c) to maintain that Act 1976 is applicable to the petitioner and has placed reliance on the judgments of Hon'ble Supreme Court in the cases of Kohinoor Chemical Co. Ltd. and another (supra), Don Basco High School v. The Assistant Director, E.O.B.I: and others (PLD 1989 SC 128) beside decision of this Court in Anjuman Faizul Islam v. Pakistan etc. (1988 PLC 937). He has also referred to two unreported judgments in W.P. No. 8263/89 "Crescent Educational Trust v. E.O.B.I" " and W.P. No. 13t/85 "M/s. Punjab Club v. E.O.B.I." It is added that it is a beneficial legislation, therefore, to be interpreted liberally so the purpose of the law could be carried out to the fullest extent. The learned counsel in this behalf has referred to cases of Don Basco High School (supra) and Quadri Brothers Foundry and Workshop, Karachi v. Sindh Employees' Social Security (PLD 1977 Kar. 112).

5. I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record, relevant provisions of law and precedents. The first question for determination is whether the provisions of Act 1976 are applicable to the petitioner or not? The learned counsel for the petitioner argued that the petitioner is neither industry nor establishment, therefore, demand and show‑cause notice issued by the respondent No. 1 was illegal. Therefore, before proceeding any further, it is worthwhile to ascertain the scope of Act 1976, the Act as per section 1(4) applies to every industry and establishment in which more than 20 persons are employed. While `establishment' has been defined in clause (e) of section 2, which reads as under:‑‑ "(e) establishment" means‑‑‑ (i) 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, organisations 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; (ii) a construction industry, as defined in the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 Pakistan Ordinance No. VI of 1968); (iii) a factory as defined in the Factories Act, 1934 (XXV of 1934); (iv) a mine as defined in the Mines Act, 1923 (IV of 1923); (v) a road transport service as defined in the Road Transport Workers Ordinance, 1961 (XXVIII of 1961); '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 purposes of this Act." Act 1976 is a beneficial statute, therefore, the same is to be liberally interpreted. The learned counsel for the respondents has rightly referred to the case of Kohinoor Chemical Co. Ltd. (supra). I am fortified in my view by the judgments of Hon'ble Supreme Court in the cases of Don Basco High School, Anjuman Faizul Islam (supra) and Adamjee Foundation and another v. First Sindh Labour Court, Karachi and another (PLD 1979 Kar. 510) as well as two unreported judgments in the cases of Crescent Educational Trust and M/s. Punjab Club (supra). The Hon'ble Supreme Court in the case of Don Basco High School (supra) observed as under:‑‑ ' "Then in the definition of `establishment' as given in the Act, before the words, clubs, hotels, organisations 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, Chitagong v. Sales Tax Officer, Chitagong 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 clauses is order to enlarge the meaning of words and phrases occurring in the body of the statute.' Further, the word `organisation' in itself is broad enough to include school. According to Black's Law Dictionary word `organisation' 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." While in the case of Anjuman Faizul Islam (supra) it was argued that "the case of the petitioner is that according to the aims, objects and constitution of the Anjuman (Annexure `B') the Society receive its income largely from voluntary OK contribution. Its aims and objects are the protection and care of the orphans and other educational and religious pursuits. It has been stated that since the donations received by the Anjuman are uncertain the Anjuman is not a regular employer and all persons engaged in the service of the Orphans and Orphanage are not regular employees but are participants in a sacred cause". This argument was repelled and it was held that:‑‑‑ " .. It is a beneficial legislation and therefore the purpose behind this law will have to be kept in mind before applying the principle of ejusdem generis. The organisation which have a certain number of employees working for them have been asked to pay a certain percentage of the salary of the employees to the fund which in turn will try and provide for the old‑age of the employees of such organisations:' The writ petition was accordingly dismissed. The same view was followed in W.P. No. 8263/89 titled "Crescent Educational Trust v. E.O.B.I:", W.P. No. 1373 of 1985'titled "Punjab Club v. E.O.B.I " and W.P. No. 5084 of 1985 titled "Lahore Gymkhana Club v. Employees' Old‑Age Benefit Institution".

6. It is clear from the above definition of establishment and precedents that it covers all organisations, clubs, hospitals, clinics. In short the important and relevant consideration is employment of more than 10 persons and not the object, purpose, business, pursuit of the employer. Therefore, there is no merit in the argument that the Act 1976 is not applicable to the petitioner.

7. Now coming to the question whether the petitioner is liable to pay contribution in respect of its employees or not? I may point out at the very outset that this is a factual controversy which cannot be allowed to be raised in the Constitutional petition. Moreover, the petitioner has not pinpointed objection with reference to the particular employees. The learned counsel for the respondents very candidly conceded that petitioner is at liberty to point out any person employed by it after the age of 60 years. The respondents shall not press for the contribution in respect of such employee.

8. The main thrust of the argument of the learned counsel for the petitioner was that large number of persons are employed by the petitioner twice a week on race days for couple of hours, therefore, they cannot be treated as employees. Therefore, before proceeding any further it is relevant to refer to section 2, subsection (bb), which reads as under:‑ "(bb) `employee' means any person employed, whether directly or through any other person, for wages or otherwise, to do any skilled or unskilled, supervisory, clerical, manual or other work in or in connection with the affairs of an industry or establishment, under a contract of service or apprenticeship, whether written or oral, express or implied, and includes such person when laid off‑ Provided that a director of a limited company or of a corporation set up under any law shall not be treated as an employee under this Act, irrespective of his wages or emoluments:' It is clear from the above definition that it is comprehensive and cover' employment of every type and kind. The learned counsel for the respondents with reference to Annexure `F' appearing at pages 37 to 56 showed that in fact the petitioner was employing same persons but it has only placed on record statements showing the wages paid on one date. It would be seen from the definition of the employee that there is nothing as to working hours or mode of payment of wages. The only ingredients are employment and payment of wages. The learned counsel for the respondents on Court query explained that the contribution is payable at the rate of 5% of the wages and similarly, pension payable to the workers is also worked on the basis of contribution received. This is complete reply to the argument of the learned counsel for the petitioner. It is needless to add here that it is the duty of the every establishment under section 11 of the Act 1976 to seek registration with the Institution, work out the amount of contribution and pay the same. This legal obligation was admittedly not discharged by the petitioner. Therefore, the respondent No. I was at liberty to press into service provisions of section 12 of Act 1976. If looked from this angle the petitioner is not entitled to relief in Constitutional jurisdiction.

9. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed with costs. A.A./L‑101/L Petition dismissed.