1974 PLP 98 (PLC)

DORAB PATEL, J. The petitioner is a firm of chartered accountants. It has very large staff which has formed a Trade Union: This Trade Union is the second respondent in this constitutional petition, but the petitioner does not recognise it and contends that it is a self-styled Trade Union. Be that as it may, the 2nd respondent sub mitted a charter of demands on 5-3-1973 to the petitioner under section 26 of the Industrial Relations Ordinance, 1969 (hereafter called the Ordinance), but the petitioner immediately repudiated these demands on two grounds. The first was that it was not an industry under the Ordinance, and the second was that the 2nd respondent was not competent to make any demands under the Ordinance. The 2nd respondent therefore served a strike notice on the petitioner by its letter dated 21st March 1973, which was im mediately repudiated by the petitioner on the same two grounds. Conciliation proceedings were thereafter instituted under the Ordinance, but according to an undated order of the Conciliation Officer, the conciliation proceedings failed because the petitioner refused to discuss the demand of the 2nd respon dent on the aforesaid two grounds. Therefore, the 2nd respondent filed an application before the 1st respondent (which is the Vth Sind Labour Court in Karachi under section 32(1)(A) of the Ordinance together with a statement of its claim against the petitioner. The 1st respondent thereupon issued a notice to the petitioner, dated 26-4-1973, directing it to show cause against the application and the demands of the 2nd respondent. The petitioner has therefore filed this constitutional petition to challenge this notice by the 1st respondent, and its contention is that this notice is illegal and without lawful authority on the same two grounds, namely, that it is not an industry under the Ordinance, and that m any event the 2nd respondent is not entitled, for the reasons which I shall presently discuss, to institute any proceedings under the Ordinance.

2. Mr. Brohi's first submission was that the first respondent had no jurisdiction to issue the impugned notice to the petitioner because the petitioner is a firm of chartered accountants, and, as chartered accountants belong to a learned profession, they cannot be treated as an industry under the Ordinance. Now, this submission is based on the assumption that a Labour Court has juris diction, under the Ordinance, to entertain claims only against an industry, a defined in the Ordinance. The assumption is correct, and as it was conceded by Mr. Fazeel. I only need to examine the question whether per3ons following learned profession fall within the definition of industry in the Ordinance. I may also point out here that the definition of industry is now a very artificial definition. It is contained in clause (xiv) of section 2 of the Ordinance and was substituted for the old definition by section 2(c) of Ordinance XIX of 1970. Thus definition reads. "(xiv) "Industry" means any business, trade, manufacture, calling, service, employment o c occupation." As accountants are members of a profession or a learned profession, obviously they are not traders or manufacturers under this definition. This was also not disputed, but Mr. Fazeel's objections were two-fold. The first was that the partners of the petitioner had organised themselves into a business for the purpose of following their profession and therefore constitut ed an industry. Secondly, according to Mr. Fazeel, in any case, the words "calling, service, employment or occupation were wide enough to include the learned professions". Taking the second point first, I would point out here that the ordinary dictionary meaning of the words "calling" and "occupation" would include the learned professions. Mr. Brohi therefore submitted half- heartedly that these words had to be restricted by reference to the preceding words "business, trade, manufacture." However, learned counsel did not go to the length of contending that the case fell under the rule of noscuntur a socials, perhaps because this very plea had been rejected by the Indian Supreme Court m the State of Bombay and others v. The Hospital Mazdoor Sabha and others (AIR1960SC610) a decision on, which Mr. Brohi placed very great reliance. Learned counsel however vehemently contended that the profession of chartered accountants is a learned profession and even cited judgments in support of this argument. It is not necessary to examine these judgments, because I will assume that the profession of chartered accountants, which is an honourable profession, is a learned profession. However, it cannot be questioned, and this was also conceded by Mr. Brohi, that the Bar had, for centuries, when held to be a learned profession, yet it is proverbial to speak of the high calling of the Bar. Now, if the Bar is thus a calling, how can he contended that the profession of chartered accountants is not a calling ordinary meaning of the word occupation is wide enough to include all the professions. Mr. Brohi admitted this, but he submitted that we should curtail the meaning of the word so as to exclude the learned pro fessions, as was done by the Madras High Court in Fraser & Ross, Chartered Accountants v. Sambasi Vaiver (A I R 1969 Mad. 134). As this judgment merely follows the judgments of the Indian supreme Court, I will consider here only those judgments.

3. However, before I do so, I must point out that all the Indian deci sions cited were on the definition of industry in the Industrial Disputes Act, 1947, which was repealed by the Industrial Disputes Ordinance, 1959. This Ordinance was repealed by the West Pakistan Industrial Disputes Ordinance, 1968, which was in turn repealed by the Ordinance. Now, section 2(j) of the Industrial Disputes Act, 1947 read "Industry means any business, trade, undertaking, manufacture or calling of employers and includes any calling, service, employment, handicraft or industrial occupation or avocation of workmen." I may pause here to point out that this definition of industry was retain-' ed both in the Industrial Disputes Ordinance, 1959 and in the West Pakistan Industrial Disputes Ordinance, 1968, and even in the Ordinance, as ordinarily enacted, the definition was the same, except that four inclusive clauses were' added to it in order to clarify that mining, transport and the other matters specified in these clauses were industries. It is therefore very clear that the definition, which we have to construe marks a complete break with the past, and with these observations, I would now consider the Indian decisions.

4. In Ranerji v Mukerjee (AIR 1953 SC58), the Indian Supreme Court held that a municipality could be an industry with regard to those of its activities, which were not of a purely administrative nature. In coming to this conclusion, the learned Judges pointed out that the definition of industry was different from the ordinary connotation of the word and they observed: "It is obvious that the limited concept of what an industry meant in early times must now yield place to an enormously wider concept so as to take in various and varied forms of industry so that disputes arising in connection with them might be settled without much dislocation and disorganization of the needs of society." This view was again affirmed by the Indian Supreme Court in Baroda Borugh Municipality v. Its Workmen and others (AIR1957 SC110). The next impor tant case is The State of Bombay and others v. The Hospital Mazdoor Sabha and others (AIR1957 SC110). The dispute in this case related to a hospital- run by the Government Now, a hospital is not a trade or manufacture, and the conten tion was that it could neither be a business nor an undertaking because the hospital was not run for private profit. That it was not a business is obvious, but the one word of very wide import, in the definition of industry in the statute under construction, was the word "undertaking." The learned Judges repelled the contention that an organization of charitable or of a non profit nature could not be an industry with the observation "It sounds in congruous and self-contradictory to suggest that activities undertaken by the Government in the interest of socio-economic progress of the country as beneficial measures should be exempted from the operation of the Act which in substance is a very important beneficial measure itself." Then in view of the wide meaning of the word "undertaking" they held that the hospital was an industry and I would quote the observations in para 17 of the judgment on which Mr. Brohi relied. "We have yet to decide which are the attributes the presence of which makes an activity an undertaking within section 2( j), on the ground hat it is analogous to trade or business. It is difficult to state these possible attributes definitely or exhaustively as a working principle it ay be stated that an activity systematically or habitually undertaken for the production or distribution of goods or for the rendering of material services to the community at large or a part of such com munity with the help of employees is an undertaking. Such an activi ty generally involves the co-operation of the employer and the employees; and its object is the satisfaction of material human needs. It must be organised or arranged in a manner in which trade or business is generally organised or arranged. It must not be casual nor must it be for oneself, nor for pleasure. Thus the manner in which the activity in question is organised or arranged the condition of the co operation between employer and the employee necessary for its success and its object to render material service to the community can be regarded as some of the features which are distinctive of activities to which section 2(j) applied Judged by this test, there would be no difficulty in holding that the State is carrying on an undertaking when it runs the group of Hospitals in question."

5. However, I would pause here to point out that Mr. Brobi also relied on the observations in para. 12 of this judgment in which the learned Judges observed that, although the definition of an industry was very wide, its meaning had to be restricted because "a line would have to be drawn in a fair and just manner so as to exclude some callings, services or undertakings. If all the words used are given their widest meaning of services and all callings would come within the purview of the definition; even services rendered by a servant purely in a personal or domestic matter or even in a casual way would fall within the definition. It is not and cannot be suggested that in its wide sweep the word service is intended to include service howsoever rendered in whatever capacity and for whatever reason." I respectfully agree with this view that a line has to be drawn somewhere in every definition, but the question where that line has to be drawn must depend on the definition and the statute in which the definition occurs. That is impor tant, because the judgments cited are on a different definition in a different statute. Reverting however to the decisions cited, the Indian Supreme Court held in Ahmedabad Textile Industries Association v. The State of Bombay (AIR 1961 SC484) that a research institute was an industry. But in Medical Union of Commercial Employees v. Mehar (A I R 1963 S C 1873), the Court held that a solicitor's firm was not because, unlike industry, a solicitor's services were rendered without the co-operation of capital or labour, and most important of all, because the "services rendered by a solicitor depended entirely on his "special or peculiar intellectual and educational equipment." As I shall presently show, with this judgment began a change in the views of the Indian Supreme Court. Next is the decision in The University of Delhi v. Ram Nath (A I R 1962 S C 1080). The industrial dispute in this case had been raised by the drivers employed by the University of Delhi therefore the question which arose for determina tion was whether an educational institution was an industry under the definition quoted above, and the learned Judges held that it was, not. However, in coming to this conclusion, they relied on the definition of a workman. Now it would appear from the judgement that the majority of education institutions in India were run by the Government, and it was conceded by the respondent that the members were Government servants and did not fall within the definition of workmen under the industrial Disputes Act. Reading therefore the definition of a workman with that of industry the Indian Supreme Court held that "the work of education carried on by education institutions like the University of Delhi is not an industry within the meaning of the Act." Next came the judgment in The Secretary Madras Gymkhana Club Employees' Union v. The Management of Gymkhana Club (AIR 1968 S C 554) And as the Madras judgment relied upon by Mr. Brohi is based. on this Gymkhana Club's case, I will .consider it in detail. But I would first point out that the Madras Gymkhana was not held to be an Industry on the sole ground that it was a member's club. With great respect, a different view is possible, but it is unnecessary for me to go into this question. However, to complete the history of the Indian Supreme Court's view. I would point out that in The Management of Safdar Jung Hospital v. Kuldip Singh Sethf and others (AIR 1968 S C 554), the Indian Supreme Court overruled the view earlier taken in the State of Bombay v. The Hospital of Mazdoor Sabha? Case, and held that a hospital not run for profit was not an industry under the Industrial Disputes Act, 1947. Thus, if I may say so, the wheel has turned full circle and on this ground alone, I would hesitate to follow the Indian view.

6. I observed that the Madras Judgment relied upon by Mr. Brohi purports to be based on the Gymkhana Club's case therefore I have to observe that the appellant, which was the employees' Trade Union, appears to have based its case on the wide meaning of the word "undertaking." But the Indian Supreme Court observed that the definition of an industry disclosed a "procrustean approach to the problem. The word means some thing definite . . . .". Then they observed that some of the previous tests laid down by the Court were unsatisfactory. Thus with reference to the earlier view of the Court that a solicitor's firm was not an industry because it did not involve interpretation between labour and capital, they observed "the learned professions are not industry, not because there is absence of such partnership but because viewed from the angle of employer's occupation they do not satisfy the test. A solicitor earns the livelihood by his own efforts. If his work requires him to take help from menials and other employees who carry out certain assigned duties the character of the solicitor's work is not altered. What matters is not the nexus between the employee and the product of the employer's efforts but the nature of the employer's occupation." And I would now quote para. 20 of the judgment as it furnishes the key to the changing attitude of the Indian Supreme Court: "The definition of `industry' is in two parts. In first part it means any business, trade, undertaking, manufacture or calling of employers. This part of the definition determines an industry by reference to occupation of employers in respect of certain activities. These acti vities are specified by five words and they determine what an industry is and. what the cognate expression `industrial' is intended to convey. This is the denotation of the term or what the word denotes. We shall presently discuss what the words `business, trade, undertaking, manufacture or calling' comprehend. The second part views the matter from the angle of employees and is designed to include some thing more in what the term primarily denotes. By the second part of the definition any calling, service, employment, handicraft of industrial occupation or avocation of workmen is included in the concept of industry. This part gives the extended connotation. If the activity can be described as an industry with reference to the occupation of the employers, the ambit of the industry under the force of the second part, takes in the different kinds of activity of the employees mentioned in the second part. But the second part, standing alone cannot define under `industry'. An industry is not to be found in every case of employment or service. An individual who employs a cook gets service from his employee whose avocation is to serve as a cook but as the activity of the individual is neither business not trade, nor an undertaking, not manufacture, nor calling of an employer there is no industry. By the inclusive part of the definition the labour force employed in an industry is made an integral part of the industry for purposes of industrial dis putes although industry is ordinarily something which employers create or undertake." This, in my opinion, is the true ratio of the Indian cases in the National Union of Commercial Employees' case and the subsequent cases the defini tion of industry is divided into two parts, and, therefore, although words like "calling", "service" "occupation" and "employment" are words of wide import, their meaning has to be curtailed by reference to the first part of the definition. The construction of the word "industry" by the Indian Sup reme Court is thus based on its view that the definition of industry in the industrial Disputes Act was divided into two parts, therefore I must point out here that it was not even argued before us that the definition of industry is the Ordinance is divided into two parts. Clearly it is not, and the result is that the ratio of the Indian view is not relevant.

7. Mr. Brohi then tried to persuade us to follow the Indian view on the ground that the meaning of words in a statute had to be construed in the context of that statute; had referred us to judgments and authorities in support of this submission. As all the case cited relate to the construc tion of the Industrial Disputes Act, 1947, which was repealed long ago, I would quite here an observation by Lord Atkinson in Keates v. Lewis Merthyr Consolidated Collieries Ltd. (1911 A C 641): "In the construction of a statute it is, of course, at all times, and under all circumstances, permissible to have regard to the state of things existing at the time the statute was passed, and to the evils which, as appears from its provisions, it was designed to remedy." These observations state a familiar maxim of construction. A definition in a statute may therefore be curtailed by reference to the context of that statute. But Mr. Brohi wanted us to curtail the definition of industry largely on the basis of the reasoning in the Indian decisions. Now, that reasoning had reference not only to a different definition but also top a different statute. I have to emphasise this, because the concept of welfare legislation in the Ordinance is, if I may say so, far more developed than in the Industrial Disputes Act. However, according to Mr. Brohi, the reasoning in the Indian decisions was nonetheless relevant because it was based on the distinction between the learned professions and industry, and this distinction was too deep and fundamental to be abolished by the Legislature. And in order to support his version of the legislative intent, learned counsel even referred us to the Income-tax Act, 1922 and the judgments on it. But if there be any doubt on the question of the legislative intent in the Ordinance, so as to justify a reference to other statutes, then, in my humble opinion, we have to examine not the Income-tax Act but the statutes in the field of welfare legislation which were enacted by the Legislature in the 22 years between the enactment of the Industrial Disputes Act and the Ordinance. 8. 1 would therefore merely mention here the statutes passed in the period of ten years or so before the 'enactment of the Ordinance. The Maximum Wages Ordinance was enacted in 1961, the West Pakistan Emp loyees Special Security Ordinance in 1965 and the Companies Profits (Workers Participation) Act in 1968. I will presently consider the changes in the Standing Orders, but I would first revert to the Ordinance itself. As I showed earlier, the definition of industry in it is much wider than in the Industrial Disputes Act. The Ordinance also contains a definition of "establishment" which is similarly wide. Further, as the Ordinance repealed the West Pakistan Trade Unions Ordinance, 1968, it contains the law of Trade Unions. And as the question is of the intention of the Legis lature in 1969 and in 1947, I have to observe that the rights conferred on Trade Unions and on members of Trade Unions by the Ordinance are far greater than those conferred by the Trade Unions Act, 1926, which was in force in 1947 when the Industrial Disputes Act was promulgated. This was not disputed because it is obvious, even on a cursory perusal of the two statutes, therefore I need not detail the differences between them. And as the Ordinance contains and enlarges the remedies of workmen for enforcing their rights under the Standing Orders, I may recall here that the Industrial Employment (Standing Orders) Act came into force in 1946. It was first in the series of statutes about Standing Orders, and it applied only to industrial establishments employing one hundred or more workmen. This Act was repealed in 1960 by the Industrial and Commercial Employment (Standing Orders) Ordinance. This Ordinance applied to industrial and commercial establishments, which employed 50 or more workers. It was repealed by the West Pakistan (Standing Orders) Ordinance of 1968, and this Ordinance now applies to all industrial and commercial establishments, which employ 20 or more persons. Not only have the rights and remedies of workmen been enlarged as a result of these changes, but what is very significant is that the definition of a commercial establishment in this Ordinance ex pressly includes Insurance Companies, Banks, Stock Exchanges, Offices of Joint Stock Companies, Clubs, Hotels, Restaurants, Eating Houses and Cinemas. Finally as Mr. Brohi relied on it, I would also refer to the West Pakistan Shops and Establishments Ordinance, 1969. The object of this Ordinance is to regulate "hours and other conditions of workmen and the employment of persons employed in shops and commercial, industrial and other establishments." Now this Ordinance can be extended to all com mercial establishments as defined in section 2, and it is significant that the definition expressly includes the offices of lawyers income-tax practitioners, registered accountants and engineers," and it may further include such other professional establishments which the government may declare to be commercial establishments..

9. I have referred to these statutes to show that the Ordinance was on in the series of statutes, which manifest the concern of the Legislature for the welfare of workmen. In the legislative background, it is clear that the Legislature has altered the definition of industry deliberately, and it would be defeating its intention if we were to construe and restrict the meaning of new definition by reference to the old definition, and the learned counsel to refer us to provision decisions on it, therefore, we asked visions in the Ordinance, which could support his submission that the very wide definition of industry had to be curtailed by reference to the context of the Ordinance.

10. Learned counsel could only refer us to the definition of establish ment in clause (ix) of section 2, which reads as follows t "(1x) "Establishment" means any office, firm, industrial unit, under taking shop or premises in which workmen are employed for the purpose of carrying on industry." As I will presently show, this definition is very important, and I agree with Mr. Brohi that it is relevant to that of industry, but I cannot agree with the inference drawn by learned counsel from this definition. I may further point out that this definition is different from and in some ways wider than the defi nition of establishment in the West Pakistan Standing Orders Ordinance. Additionally, this definition expressly includes a firm, and as the petitioner is a firm, it is difficult to see how this definition helps its case. But, according to Mr. Brohi, the definition was very restricted because the words "in which workmen are employed for the purpose of carrying on any industry" qualified not merely the preceding word "premises", but all the preceding words, and therefore, according to Mr. Brohi, the definition was narrow, and the result of this was that the meaning of the words in the definition of industry had to be curtailed by reference to this definition. The submission must be rejected for more reasons than one. Taking first the definition of establishment, if we construe it in the manner proposed by Mr. Brohi, the words "industrial unit" would become redundant, and as submitted by Mr. Fazeel, redundancy should not be lightly attributed to the Legislature. Secondly, Mr. Brohi's construction begs the question of what the word 'industry' means, and when we asked him how this word was to be construed, he replied that it should be construed according to the ordinary dictionary meaning, and therefore, the definition of industry in the Ordinance had to the curtailed to that of the definition in the Industrial Disputes Act. But if that had been the intention of the Legislature, why should it have altered the definition? But apart from attributing absur dity to the Legislature, the submission overlooks the crucial consideration that the word "industry" in the definition of establishment was substituted in that definition for the words "manufacturing process, business trade or service" by section 2 (c) of Ordinance XIX of 1970, whilst the definition of Industry, which we have to construe, was substituted for the original defini tion by section 2 (d) of the same Ordinance. In this background, Mr. Brohi's submission implies that the meaning of industry in section 2 (c) of Ordi nance XIX of 1970 is different from that in section 2 (d) of that Ordinance, but even Mr. Brohi did not go to the length of contending that industry had two different meanings in section 2 of Ordinance XIX of 1970, obviously, therefore the word "industry" in the definition of establish ment must be construed according to the definition of industry in the Ordinance.

11. Mr. Brohi's next submission was based on the West Pakistan Shops and Establishments Ordinance. As I pointed out earlier, the definition of establishment in this Ordinance contains an express provision with regard to the offices of lawyers, accountants and engineers. But as the defini tion of industry does not contain any such express provision Mr. Brohi submitted that the Legislature had, by its silence, manifested its iatent1oit not to include the professions, or at least the learned professions, in the, defini tion of industry. I was initially impressed by this argument, but it ignores the history of the definition of industry. The Trade Disputes Act of 1929 did not define industry. The definition was inserted for the first time in the Industrial Disputes Act, and, according to the view taken by the Indian Supreme Court, this definition was not wide enough to include the professions. Now on that definition (I say so with respect) this was, at least, a possible and reasonable view, and of this the Legislature must be presumed to have been aware, therefore, it has now enacted in the Ordinance a definition which is both different and wider than the earlier definition But the West Pakistan Shops and Establishments Ordinance was promul gated before this change in the definition. It was promulgated on 30th June 1969. At that time the West Pakistan Industrial Disputes Ordinance was in force and as the definition of industry in this Ordinance was the same as in the Industrial Disputes Act, it was desirable and necessary to make express provision in it for the professions in order to bring them within the ambit. But the Legislature has now given a new definition of industry. That definition is an artificial definition, as that the Ordinance contains, so to say, its own dictionary, and, at the same time, this new definition is wide enough to include the professions. In these circumstances, as there is no analogy between the situation now prevailing and the situation when the West Pakistan Shops and Establishments Ordinance was passed, the absence of an express reference to the learned professions in the definition of industry does not mean or imply that they are not included in the definition, and the only question is of the ordinary dictionary meaning of the words used in the definition. But, as I pointed out, the words used, and especially` the words "calling" and "occupation" are wide enough to include all the professions. How then can the meaning of these words be, curtailed in order to exclude the learned professions?

12. Mr. Brohi fell back on his earlier submission that the concept of a learned profession was so utterly inconsistent with that of industry that to treat a member of a learned profession as an industry would not only be shocking, but it would also amount to interference with time hon oured concepts. According to Mr. Brohi such an intention could not be attributed to the Legislature merely because the words in the definition of industry were wide therefore, these words had to be given restricted meaning. At first sight, this appeal to time honoured concepts appeared attractive but it overlooks the fact that the object of welfare legislation may be to strike down such concepts. Mr. Brohi did not think this was possible. I cannot agree because as I showed earlier in para. 8, much water has flown under the bridge between the enactment of the Industrial Disputes Act, 1947, and the Ordinance. Be that as it may, learned counsel relied, for the purpose of his arguments, on the judgment of the Indian Supreme Court in National Union of Commercial Employees v. Meher. I will refer to this case as the Solicitors case, and as learned counsel placed very great stress on it, I would repeat here that this judgment and the later judgments of the Indian Supreme Court were based on a different definition in a different statute.

13. However, in difference to learned counsel's industry (if I may be permitted to use this word), I would briefly examine the grounds given by the Indian Supreme Court for its view in the Solicitor's case. According to the Indian Supreme Court, a person following a liberal profession rendered his professional services by bringing into the profession "his special or pecu liar intellectual equipment", and not by co-operation with labour, even though he might be employing labour. Now I have no hesitation in agreeing with a view that person practising profession pursues an occupation involving the intellect'', as was observed in Fraser and Ross v. S. Iyer (A I R 1969 Mad. 134). But can it be seriously argued that a business can be run successfully without intellectual ability? Would not the intellectual qualities required to run, ay, n electronic business be at least as high as those required in the professions; nor can there be any doubt that a research institute cannot be run without intellectual abilities of at least as high an order as are required for practice in the learned professions, yet the Indian Supreme court had held in the Ahmadabad Textile Industries Research Association case that a research institute was an industry. Hence my earlier observation that the Indian Supreme Court had changed its view with the Solicitor's case and in my humble opinion, the earlier view is to be preferred. But reverting to tale Solicitor s case, another reason for the view taken in it was that the concept of industry necessarily involved co-operation between capital and labour, but that the services rendered by the liberal professions did not. We respect, this view might be valid with regard to a lawyer, a doctor practising by himself, and it would be true of the services rendered by the oldest of the learned professions, that of the priest. Now here I may point out that, with regard to his second jurisdictional objection, which I shall presently consider, Mr. Brohi said that the petitioner had a staff of about 175 persons. This means premises, furniture, books and equipment, and therefore an investment of capital. Similarly establishments like the petitioner's could hire accountants on a salaried basis and this also means an investment of capital. No doubt the capital thus required would bear no relation to that required for setting up a textile mill, a circumstance stressed by the Indian Supreme Court in the Solicitor's case. But a large R professional establishment may require as much capital as a small factory under the Factories Act. And similarly if a group of lawyers or doctors work together the capital required for libraries and medical equipment may be substantial therefore there is a difference between a lawyer or a doctor practising by himself and lawyers or doctors organising themselves into a large establishment, and I cannot agree with the observations to the contrary in the Solicitor's case. Additionally, as Mr. Brohi invoke `d time-honoured concepts, I have to observe that the setting up of large professional establishments is of recent origin, and since learned counsel laid so much stress on the ordinary man's concept of industry, I venture to think that the ordinary man's view of large professional estab lishments would be that the professional gentlemen had organised themselves' into a business.

14. Mr. Brohi also referred us to further tests laid down by the Indian Supreme Court for determining what an industry was. According to learned counsel, the question had to be determined from the angle of the employer, with the result that the petitioner in the instant case could not be an industry. Now the tests thus added by the Indian Supreme Court in its decisions, beginning with the Solicitor's case, had reference to the construction of the word "undertaking" and the further tests were added in order to curtail the wide meaning given to the word in State of Bombay v. Hospital Lok Sabha. But the legislature has omitted the word "undertaking" from the definition which we have to construe, and on the contrary, it has inserted instead several words of equally wide import, like "occupation and calling". Secondly these words are independent of the immediately preceding words business, trade and manufacture. Thirdly, this definition is not divided into two parts. This is important because, as explained earlier the Indian view is based on the finding that as the old definition was divided into two parts, the wide meaning of the words in the second part had to be curtailed by reference to the first part. The definition before us is thus different in every material particular from the defini tion in the Industrial Disputes Act,, therefore, in my humble opinion, learned counsel's reliance on the Indian decisions is misconceived, and to allow them would be to go against the context of the Ordinance.

15. Mr. Brohi also submitted that the concept of industry implied the production of goods or the rendering of services, but as the learned professions produced neither, they could not be treated as industries merely because the words "calling" and "occupation" could cover the profession. Once again the submission is supported by the Indian view, but with respect, I cannot agree, except for the oldest of the learned professions. No doubt the services of a priest are not of a material nature but as the services rendered by lawyers, doctors and accountants pertain to the affairs of the world; I do not see how they can be described except as material services or services of a material nature.

16. Additionally, I would observe here that the appeal to time honour ed concepts ignores the history of the Ordinance. The Trade Disputes Act, 1929 was the first in the line of statutes which led to the Ordinance 40 year later, and this period was too short to permit the growth of time honoured concepts. And it seems to me that Mr. Brohi's submission assumes that it would be unreasonable to be extend the benefit of welfare legis lation to the employees of the learned professions; but why should this be so? As Mr. Brohi relied on the fact that welfare legislation had not been extended in the past to the learned professions, I would only observe that this is ac reason for not extending it, as has been done in other countries with changing conditions, and the question is entirely of the legislative intent.

17. Mr. Brohi then pointed out that the application of the Ordinance to the learned professions would cause great injustice because of the obvious differences between the learned professions and industry (according to the ordinary dictionary meaning of that word) and further, according to learned counsel, these were socio-economic conditions on account of which the Legislature had not extended welfare legislation to the learned professions, and because these socio-economic conditions had not changed, the Legisla ture had deliberately refrained from including the learned professions in the definition of industry. I must confess that I have been disturbed by this aspects of the case. According to Mr. Brohi, the contrast between the industry and the learned professions was that un-like industry the learned professions earn their livelihood by the application of the intellect. This of course is the view of the Indian Supreme Court, and whilst I cannot accept the claim that the learned professions have the monopoly of intellectual activities, I would agree with the proposition that the services rendered by a member of a learned profession are far more dependent on his intellectual abilities and are far more directly related to his intellectual efforts than is generally the case with the manager of a business, therefore the application of the Ordinance to the learned professions will cause hardship because of the nature of the service rendered by these professions and we would not be justified in including the learned professions In the definition of industry, unless this was very clear from the definition. To this extent only can I accept learned counsel's appeal to socio-economic concepts, but there is another aspect of the matter, which learned counsel overlooked. This is that the definition of industry was altered and enlarged by Ordinance IX of 1970. This was after Industrial development had gathered momentum in the country. and the necessary result of such development is the growth of what are called the service industries; shops, hotels, eating houses, restaurants clubs and cinemas etc. That is elementary economics, and it is significant that shops, cinemas, clubs and eating houses, were included for the first tune in the definition of an establishment by the West Pakistan Standing Orders Ordinance of 1968. But as Industrial development also creates a demand for the services of the learned professions, can they escape the wind of change?

18. Additionally, Mr. Brohi's arguments ignore the claims of the em ployees of the professions, and according to learned counsel this was because the matter had to be considered exclusively from the angle of the employer. But this would be a strange way of construing a piece of welfare legislation, in the absence of some express provision In that respect, and learned counsel was not able to refer us to any such provision in the Ordinance. On the other hand, Mr. Fazeel relied on the definition of a worker, and this defini tion goes against Mr. Brohi's submission because it is very wide. Mr. Brohi therefore invited us to give a restricted meaning to this definition also, and 3a this connection his submission was that the Ordinance was meant to protect the interest of workmen in the sense of manual labour, such a workers who hammered steel and operated looms sad spindles, and learned counsel explained that it was only this class of workmen who need protec tion. This submission implies that white, collar workers are not entitled to the benefit of the Ordinance. Now, for the purpose of welfare legislation, I can see no rational basis in the year 1970 for a distinction between white, collar workers and workers who earn their livelihood by manual labour. However as the question is solely of the intention of the Legislature, I would quote here the definition in clause (xxviii) of section 21 "(xxviii) "Worker" and "workman" means any person not falling within the definition of employer who is employed (including employment as a supervisor or as an apprentice) in establishment or Industry for hire or reward either directly or through a contractor whether the terms of employment were expressed or implied, and for the purpose of any proceeding under this Ordinance in relation to a industrial dispute includes a person who has been dismissed, discharged, retrenched laid off or otherwise removed from employment in connection with or as consequence of that dispute or whose dismissal discharge retrenchment lay-off or removal has led to that dispute (but dose not include any person

(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 or duties attached to the office or by reason of the powers vested in him functions mainly of managerial nature). I may also point out 'that section I a the Ordinance prescribes that the Ordinance shall not apply to any person employed in tire defence services of Pakistan and in the other services specified in subsection (3) of section

1. Thus, when the Legislature intended not to extend the benefit of the Ordi nance to any class of persons, it did so by express provision, and as white collar workers have not been excluded either by the definition or by section 1, I cannot accept Mr. Brohi's submission that they are not workmen; they are workmen except to the extent to which any of them fall under clauses (a) and (b) of the definition of a worker.

19. I would now compare this definition of a worker with that in the Industrial Disputes Act of 194.7. According to section 2(s) of that Act: "(s)" "Workman" means any person employed (including an apprentice) in any Industry to do any skilled or unskilled manual or clerical work for hire or reward and includes, for the purposes for any proceedings, under this Act in relation to an- industrial dispute, a workman dis charged during that dispute, but does not include any person employed iii the naval, military or air service of Pakistan or in the police." I may point out here that this definition was retained, in substantially the same form, in the Industrial-Disputes Ordinance, 1959, and in the West Pakistan Industrial Disputes Ordinance, 1968. Thus, the Legislature enlarged the definition of a worker for the first time in the Ordinance,' and it would be defeating Its intention if we were to curtail the wide meaning of this defini tion, unless, of course, there is some other provision in the Ordinance requiring us do so. Now, I pointed out earlier that the definition of Industry In the Ordinance, as originally enacted, was, on the whole, similar to that in the Industrial Disputes Act, 1947. And if this definition had remained in-force, it might have been possible to hold that the definition of workmen had to be given a restricted meaning on account of this definition. But the old definition of industry has now been substituted by a very much wider definition. Further, as I showed earlier, the definition of "establish ment" is also very wide. This is very important because an industrial dispute has been defined as any dispute or difference between employers and workmen, and employers have been defined only by reference to an establi shment. Now, clause (vii) of section 2 reads ';Employer" in relation to an establishment means any person or body of persons . . . . who of which employs workmen In the establishment under a contract of employment . . ." Thus, the other definitions relevant to the definition of industry were very wide, and the effect of the alteration of the definition of "industry" by Ordinance XIX ' of 1976 is that this new definition of industry has been brought into line with the other relevant definitions. Now, in this context, if we were to accept Mr. Brohi's submission to curtail the ordinary dictionary meaning of the words "calling" and "occupation", we would belt defeating the intention of the legislature in enacting- this new definition. .20. 1 am conscious that the inclusion of -the professions and especially of the learned professions if there still be sash a distinction between the profession, will have far reaching consequences for the members of the professions, and I have been greatly disturbed by this aspect of the case. How-over, the question is of the intention of, the Legislature in enacting this new definition of industry, and, as the Legislature has made Its intention clear, it is the duty of the Courts to give effect to it. Therefore, in my humble opinion, the petitioner is an industry within the meaning of the Ordinance, and Mr. Brohi first objection to the jurisdiction of the Labour Court (the let respondents) fails.

21. Mr. Brohi's second objection to the let respondent's jurisdiction was based on his oral submission, that the 2nd respondent was not a collective barraging agent within the meaning of section 22 of the Ordinance. This allegations was denied by Mr. Fazeel. This means that Mr. Brohi's objection to the Ist respondent's jurisdiction turns on a disputed question of fact which has not been pleaded, therefore I agree with Mr. Fazeel that 'we cannot examine it.

22. Mr. Brohi's third and last objection to the 1st respondent's juris diction was based on subsection (2) of section 7 of the Ordinance, and in view of Mr. Fazeel's arguments, the precise plea raised by the petitioner In the Petition is relevant, therefore, I will quote it. Accordingly to the fifth submission in the petition. The locus standi of the respondent No. 2 Ss challenged op the basis that it includes as its members employees who are not "workmen" within the meaning of clause (xxviii) of section 2 of the Ordinance, and it is- a requirement of section 7(2) that a Trade Union of workmen, shall not be entitled to registration under the Ordinance', unless all Us members are workman actually engaged or employed in the industry with which the Trade Union is connected." Mr. Fazeel admitted that the pro visions of subsection (2) of section 7 of the Ordinance were mandatory and that a Trade Union formed in disregard of these mandatory provisions would not be competent to agitate an industrial dispute. He however delayed that the 2nd respondent was hit by the provisions relied upon by Mr. Brohi, and he also submitted that the objection turned on disputed questions of fact which could not be investigated in a constitutional petition. And perhaps for abundant caution, on the basis of unreported judgement of this Court In Sind Employees' Social Security Institution v. Dr. Mumtaz Ali Taj and others (Constitutional Petition No. 525 of 1,973),' he also submitted that the petition was not maintainable because the petitioner had not advanced Its objections -before the 1st respondent.

22. As all the three objections raised by Mr. Broil related to the lot respondent's jurisdiction .to entertain the 2nd respondent's claim, I am not Impressed by Mr. Fazeel's submission that the petitioner should first have pressed its objections before the 1st respondent. Then, se to the unreported judgment of the Division Bench on which Mr. Fazeel relied, our learned brothers have observed that the constitutional jurisdiction of this Court "cannot be invoked where alternate and adequate remedies are provided and are available under the statutes". Mr. Brohi challenged the correctness of this view and submitted that it 'could not be followed by a because I was contrary to the judgment of a Full Bench of the West Pakistan High Court reported in Fazal Din v. Commissioner, Peshawar Division and another (P L D 1968 Posh. 30) In my humble opinion, the case relied upon by Mr. Fazeel is distinguishable on the facts, therefore 1 would only consider the Full-Bench judgment an Fazal Din s case. There, the petitioners had challenged their conviction under the West Pakistan Criminal Law (Amendment). Act, 1963 and as they had filed constitutional petitions without prosecuting the appeals and revi sions available to them under section 18 of that Act, the question referred to the Full Bench was whether they could seek relief directly under Article 98 of the constitution without exhausting the remedies prescribed in the relevant statutes and if so whether it was appropriate to allow the petitioners Invoke the constitutional Jurisdiction of the High Court. In a well-considered judgment, I say so with respect, Sardar lqbal, J. (as be then was) who pronounced the judgment of the Full Bench stated in paragraph 11 of bit' judgment: "Our answer to the question is that the Court in each case Is to act in its discretion and by keeping into consideration the principles laid down. In Mahboob Ali Malik v. Province of West Pakistan has to decide whether the appeal under section 18 of the Act would be an adequate remedy. In cases of absence of jurisdiction, or the excess of jurisdiction, section 18 shall not be a bar. Again, where a general question of some public impor tance has been raised and Is likely to arise in other cases, the Court may also entertain the petitions. Similarly, in cases where the order is challenged only the ground that the provision under which the order is made was not valid or was ultra virus, or that the order does not fall within the section under which it purports to have been made, or that the petitioner questions the very authority and the jurisdiction of the person to make the order, the petitioner cannot be limited to the remedy available to him against any decision made or order passed under the Act. There is, however, no rigid rule that in every case in which such questions may arise, the Court should entertain the petition under Article

98. It Is not possible to lay down any hard and fast rule that the discretion is to be exercised in such and such circumstances only. The basic principle however to be kept In view by the Court should be that the power under Article 98 where the alternative remedy Is not exhausted, is exercised sparingly with caution and circumspection; and originally only In those cases where grave Injustice may otherwise ensue.' I am in respectful arrangement with these observations, and, as the petitioner challenges the jurisdiction of the Labour Court (the 1st respondent) on grounds which involve questions of wide public importance, It has brought its case within the rule laid down by Sardar lqbal, J. therefore the petition Is maintainable. However, as the petitioner could also have raised before the 1st respondent the objection, which is now raised before us, I would observe here that I see no reason to deviate from the rule laid down by Cornelius C. J. in Ahmed Khan v. The Chief Justice and Judges of the High Court of West Pakistan (PLD1966 SC 177). There, with reference to the mariner In which writ petition are to be heard and decided, Cornelius C. J. observed". . . . the ordinary rule in a writ petition is that evidence is not received in the manner of a civil suit, but all facts to be brought before the Court are stated In the affidavits and the- question, raised which relates to the proper exercise of public authority Is decided thereon In a summary manner". In view of these observations, Mr. Brohi had to show that his objection could be decided on the basis of the record before us, and his submission was that the objection advanced had to be allowed on the admitted facts.

23. This jurisdictional objection, as Mr. Brohi called it, had reference to the admitted position that a Trade Union, which was not lawfully register ed under the Ordinance, could not prosecute an industrial dispute. Now, although Mr. Brohi admitted that the 2nd respondent was registered with the Registrar of Trade Unions under section 7 of the Ordinance, his contention was that this registration was illegal because a Trade Union could be registered only if it consisted exclusively of workmen as defined In the Ordinance. But some of the members of the 2nd respondent were articled Clarks and audit clerks, whose terms of employment were governed exclu sively by the Chartered Accountants Ordinance, 1961 and the Chartered Accountants Bye-Laws, 1961, therefore, according to Mr. Brohi, these clerks were not workmen, and the result was that on a proper construction of sub section (2) of section 7 of the Ordinance, the registration of the 2nd respondent as, a Trade Union was illegal.

24. Mr. Fazeel admitted that the 2nd respondent would not be compet ent to raise an industrial dispute if Its registration was contrary to section 7(2) of the Ordinance but he denied the allegation that the god respondent was not validly registered. As the controversy turns on the construction of section 7, I may explain hero that this section deals with the registration of Trade Unions, and prescribes that a Trade Union shall not be registered unless its constitution provides for the several matters specified in sub section (1) of this section. Thus, for instance, the constitution of a Trade Union seeking registration must state its objects and the purpose for which the general funds of the unions are to be used. A constitution must also state the number of persons who are to form the executive of the Trade Union and it must further prescribe that the executive shall include not less than 75 per cent from amongst the workmen actually engaged or employed fn the establishment or establishments or the industry from which the Trade Union has been formed. Several other conditions are prescribed but as they are not relevant to the arguments advanced before us, I would set out sub section (2) on which Mr. Brohi relied. This subsection reads: "(2) Without prejudice to the provisions of subsection (1), a Trade Union of workmen shall not he entitled to registration under this Ordinance unless all its members are workmen actually engaged or employed in the industry with which the Trade Union Is connected.". The question is of the proper construction of the words "shall not be entitled to registration." In my humble opinion they only refer to the point of time when the Trade Union is registered. This means that a Trade R Union would not come within the mischief of this subsection if after regis tration it permitted persons who were not workmen to become its members. However, Mr. Brohi's submission was that such a construction would enable Trade Unions to by-pass the provisions of subsection (2). But the subsection applies in terms only to the situation at-the time of the registra tion of a Trade Union, and as it is a penal provision it must be construed strictly. Additionally, clause (d) of subsection (1) permits persons who are not workmen to be on the executive of a Trade Union in the manner and to the extent permitted in this clause. Now, if persons who are not workmen can be on the executive of a Trade Union, it follows that they should be able to join the Trade Union which they servo, except to the extent to which there Is an express provision to the contrary. But this express provision to the con trary is contained only in subsection (2), therefore reading section 7 as a whole, I am fortified In my opinion that the bar of subsection (2) of this section is confined only to the membership of a Trade Union at the time of its registration.

25. I would now examine Mr. Brohi's argument in the light of this discussion. In order to succeed, learned counsel had to prove from the record that articled clerks or audit clerks are not workmen under the Ordi nance, and secondly he bad to prove that such clerks were members of the 2nd respondent at the time of its registration. But, as I showed earlier the petitioner has not even alleged in the petition that some of the 2nd respon dent's members were audit clerks or articled clerks. Mr. Brohi however sought to overcome the difficulty by relying on the counter-affidavit filed on behalf of the 2nd respondent. In pars. 7 of that counter-affidavit, in reference to the petitioner's averment that some members of the 2nd respon dent "are not workmen", the respondent has given the names of seven of its members who "are audit clerks" The word "are" is important, and the admission is coupled with the assertion that the work performed by these persons was of a clerical nature so that the were workmen, therefore Mr. Fazeel submitted that this paragraph, when was the only paragraph one which Mr. Brohi relied, did not contain any admission. But, according to Mr. Brohi, the statement that some members of the 2nd respon dent were audit clerks was by itself sufficient to prove his submission. Mr. Fazeel's reply to this point was that although the persons men tioned in paragraph 7 of the counter-affidavit were audit clerks, they were not audit clerks on training with the petitioner, but audit clerks, who had completed their prescribed period of training as audit clerks and had remain ed in the petitioner's employment on a contract bats. Mr. Brohi feebly submitted that Mr. Fazeel was precluded from submitting that these audit' clerks had ceased to be audit clerks under training, because it had not been stated so in the counter affidavit. It. is true that it has not been so stated, but this is because the petitioner had no pleaded that some members of the 2nd respondent were not workmen because they were audit clerks. Mr. Brohi's criticism therefore did not impress me, brat in the ends of justice we permitted both the learned counsel to file documents - in support of their respective contentions on the precise nature of the employment E f the audit clerks referred to In paragraph 7 of the 2nd respondent's counter-affidavit. But the documents filed are not sufficient to establish the contention of either party.

26. Mr. Brohi tried to overcome this difficulty by pointing out that all audit clerks clad to be registered with the Institute of chartered Accountants Bye-Laws, 1961. Mr. Fazeel 3 reply was that the Chartered Accountants Bye-Laws required the registration of audit clerks only at the time of the commencement of their training period. In order to appreciate the arguments advanced, I may explain here that the Chartered Accountant Bye-laws provide inter alia for the training of articled works and audit clerks. Thus, these Bye-law prescribe a period for training up to 7 coats for audit clerks before they can sit for their examinations us accuuutant

3. And when an audit clerk joins service his principal is required under Bye-law 73 to register his applicant over the Institute of Chartered Accountants and Mr. Brohi relied on this Bye-law However, Bye-law 80(2) which Mr. Fazeel relied sates. "(2) Every member, employing audit clerks under these Bye-law shall on completion, discontinuance or termination of the service of an audit clerk in his employment forthwith send a report to that effect to the Secretary. Every accountant employing audit clerks is required under this Bye Law to inform the Institute of Chartered Accountants of the completion of the training of his audit clerks and he is not relieved of this obligation because such audit clerks do not sit for their examination or continue is his service. Therefore, the certificate of registration Under Bye-Law 78 is not decisive. As this submission also turns on. a disputed question of fact, we cannot examine it in this constitutional petition because I see no reason to depart from the rule laid down by Cornelius, C.J in Ahmed Khan case about the procedure to be followed in writ petitions.

27. I would however record here Mr. Brohi submission that it was necessary to apply the Chartered Accountant Bye-law to clerks even after the completion of their training in order to maintain high ethical standard in the profession. I fully share this desire to maintain high ethical standards but I must point out that these Bye-law have been framed by the council of the Institute of Chartered Accountants under section 27 of the Chartered Accountants Ordinance; this section in so far as it is relevant reads as follow. "

27. Power to make Bye-Laws, (1) The council may, by notification in the official Gazette make Bye-Laws for the purpose of carrying oat the objects of this Ordinance, and .a copy of such Bye-Laws shall be sent to each member of the Institute. (2) In particular, and without judice to the generality of the forego ing power, such Bye-Laws may provide for all or any of the following matters: (i) the training of articled and audit clerks., the fixation of limits within which premier "may be charged from articled clerks and the cancella tion of articles and termination of audit service for misconduct pr for any other sufficient cause ;" I am doubtful if this clause confers a power on the council of-the institute of Chartered Accountants to frame Bye-Laws with regard to articled and audit clerks who have completed their period of training but do not desire to qualify as accountants. Mr. Brohi also relied on section 27(2)(k), but this clause reads "(k) the regulation and maintenance of the status and standard of professional qualifications of members of the Institute". I do not think this clause can be stretched to cover the point which has arisen before us, anal if it is desirea4le rte necessary to apply the Chartered Accountants Bye-Laws to articled and audit clerks who have completed their period of training, then, in roc humble opinion, a change in the law is necessary. In any case, as I explained earlier, the petitioner can succeed only if it can establish from the record of this petition that a member or members of the 2nd respondent were not workmen at the time of this res pondent's registration. But although we permitted Mr. Brohi to file docu ments even during the course of arguments, he neither filed any documents to show, nor had he stated from the Beg that at time of its registration the 2nd respondent had members who were not workmen. Therefore the petititioner has failed to establish before us that the 2nd respondent's regis tration, as a profession was Illegal In Blew of section 7(2) of the Ordinance. But the petitioner may, if so advised, raise this objection before the lot respondent and give evidence in support of it.

28. In the result, the petitioner has failed to establish that the respon dent usurped jurisdiction. In admitting the industrial dispute raised by the 2nd respondent. Therefore, the petition is dismissed but as it turns on difficult questions of law not covered by authority I would not award cost. Petition dismissed.