1990 PLP 794 (PLC)

NAZIR AHMAD BHATTI, J.‑‑N.‑W.F.P. Road Transport Board, respondent No. 1 established under section 70 of the West Pakistan Motor Vehicles Ordinance, 1965, (hereinafter referred to as the Board), is running Government Transport Service (hereinafter referred to as G.T.S.) respondent No. 2 in the N.‑W.F.P. All the petitioners herein were employed as Drivers, Conductors and Mechanics in the G.T.S. but all had retired before 7th April, 1988. The petitioners claimed that the G.T.S. was an establishment within the meaning of clause (e) of section 2 of the employees Old‑Age Benefits Act, 1976 (hereinafter referred to as the Act) but it had not been registered with the Employees Old‑Age Benefits Institution (hereinafter referred to as the Institution) for the purposes of benefits available under the Act. The petitioners claimed that the G.T.S. has got a Body Building Workshop, which has been registered as a factory under the provisions of the Factories Act, 1934, and the employees of the said workshop are entitled to claim benefits under the Act. By the writ petition in hand the petitioners claim that the refusal of the respondents Nos. 1 and 2 to register the G.T.S. as an establishment under the Act is illegal, void and unjustified.

2. Respondents Nos. 2 and 3 in their written statement have claimed that the provisions of the Act are not applicable to the Board as it is a statutory body having been created under section 70 of the West Pakistan Motor Vehicles Ordinance, 1965, and that the petitioners having retired from the service of G.T.S. and having received all retirement benefits could not claim any benefits under the Act.

3. We have heard learned counsel for the parties at length.

4. The learned counsel for the petitioners has contended that the term "establishment" as defined in clause (e) of section 2 of the Act includes the Board as well and under the provisions of section 3 of the Act all employees in an industry or establishment are to be insured in the manner prescribed under the Act. On the contrary the learned counsel for the respondents has claimed that under the provisions of clause (f) of section 47 of the Act, the G.T.S. has been exempted from the provisions of the Act.

5. In order to appreciate the contentions of both the learned counsel it would be beneficial to reproduce below the definition of the term "establishment". " 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 motels, 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 (West 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".

6. From the aforesaid definition of the term "establishment" it should be clear that a road transport service as defined in clause (vii) of section 2 of the Road Transport Workers Ordinance, 1961, comes within its purview and workers employed in a road transport service would be covered by the provisions of the Act. An order of the Board dated 24‑11‑1988, copy of which has been placed on the record alongwith the written statement, also shows that the Board had extended the Old‑Age Benefits Scheme to all its employees with effect from 1‑7‑1988. However, under the provisions of clause (f) of section 47 of the Act certain categories of persons in the service of statutory bodies have been excluded from the purview of the Act. In this respect the provisions of clause (f) of section 47 are also reproduced below:‑‑ "(f) persons in the service of statutory bodies other than those employed in or in connection with the affairs of a factory as defined in section 2(j) of the Factories Act, 1934 (XXV of 1934), or a mine as defined in the Mines Act, 1923 (IV of 1923): Provided that workshops maintained exclusively for the purposes of repair or maintenance of equipment or vehicles used in such statutory bodies shall not be treated as factories for the purposes of this clause".

7. The pleadings of the parties show that the Body Building Workshop of the G.T.S. has been registered as a factory under the Factories Act and it is also a fact that the said workshop undertakes the work of building of bodies of the vehicles of the G.T.S. besides the work of repairs of the G.T.S. vehicles.

8. From the aforesaid provisions of different clauses of the Act it can be concluded that although road transport service is an establishment for the purposes of the Act but under section 47 thereof the G.T.S. is exempt from its operations for the reason that the Board, which is running the G.T.S., is a statutory body created under section 70 of the West Pakistan Motor Vehicle Ordinance, 1965. But it is also a fact that the entire establishment of G.T.S. is not covered by the provisions of the Act because the Body Building Workshop of the G.T.S. at Peshawar which undertakes the work of building of bodies of vehicles is not so exempt. As such the employees of the G.T.S., who were actually employed in the Body Building Workshop, were entitled to claim the old‑age benefits admissible under the Act, notwithstanding the fact that the G.T.S. being a statutory creation was exempt from the operation of the Act under section 47 thereof.

9. It has been brought to our notice that although the G.T.S. had decided to extend the benefits of the Act to its employees with effect from 1‑7‑1988 but subsequently the Collective Bargaining Agent of the G.T.S. made a request to the Board to grant pension to the Board employees instead of extending the benefits under the Act and it was contended that the petitioners had no cause of action. It was further contended by the learned counsel for the respondents that all the petitioners having retired before 1‑7‑1988 they were not entitled to claim the benefits under the Act, as also on the ground that they had already received all retirement benefits, or at least such employees out of the petitioners who had not been employed in the Body Building Workshop were not entitled to claim any benefits whatsoever under the Act.

10. We cannot accept the first contention of the learned counsel for the respondents for the simple reason that the provisions of the Act were applied to every industry or establishment with effect from 19th April, 1976 when the Act came in to force or at least with effect from 1‑7‑1983 under the provisions of subsection (4) of section 1 thereof, as amended by the Employees Old‑Age Benefits (Amendment) Ordinance, 1983 (Ordinance XVII of 1983), and after the aforesaid date at least the Body Building Workshop was covered by the provisions of the Act and out of the petitioners the persons who were employed in the Body Building Workshop were definitely entitled to claim the benefits admissible under the Act and the failure of the respondent No. 1 to insure the G.T.S. with the Institution was unjustified and without lawful authority. 1t is also note‑worthy that the benefits admissible under the Act could not be denied to any worker of an establishment for the reason that he had received all retirement benefits if he had not been paid any pension or other benefits which could be claimed under the Act. It may, however, be noted that the drivers and conductors out of the petitioners were not so entitled.

11. We have, therefore, arrived at the conclusion that only those employees of the Board out of the petitioners who were employed in the Body Building Workshop of the G.T.S. were entitled to claim benefits admissible under the Act and the employees out of the petitioners who were working as drivers and conductors could not claim such benefits. We will partially accept the writ petition in the aforesaid terms leaving the parties to bear their own costs. A.A./1099/P Petition partly accepted.