1996 PLP (C (PLC(CS))

Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tired by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's ;order suspending proceedings the Registrar shall take action as laid down in paragraph i of this, section." "70‑A. Bar of jurisdiction.‑‑‑(1) Notwithstanding anything provided in any other law for the time being in force but save as expressly provided in this Act‑‑ (a) no Court or other authority whatsoever shall have jurisdiction to entertain, or to adjudicate upon, any matter which the Provincial Government, the Registrar, or his nominee, any arbitrator or liquidator, a society, a financing bank, a cooperative bank or any other person is empowered by or under this Act, or the rules ,or bye‑laws framed thereunder, to dispose of or to determine; (b) the validity of anything done or an order passed by the Provincial Government, a society, a financing bank, a cooperative bank, the Registrar or any other person referred to in clause (a), under this Act or the rules and bye‑laws framed thereunder, shall not be called in question in any manner whatever before or by any Court or other authority whatsoever; and (c) no Court or other authority whatsoever shall be competent to grant any injunction or pass any other order in relation to any proceedings under this Act or any rules or bye‑laws framed thereunder before the Provincial Government, a society, a financing bank, a cooperative bank, the Registrar or any other person referred in clause (a). (2) The provisions of subsection (1) shall be applicable to proceedings, appeals and revisions pending adjudication or disposal before or in any Court or other authority whatsoever on the date that the Cooperative Societies (Amendment) Ordinance, 1966, comes into force and any order passed in such proceedings, whether before or after the coming into force of the said Ordinance, in regard to matters referred to in subsection (1), shall stand vacated and be without any force." It is clear from bare reading of section 54 that the jurisdiction of the Courts and the Tribunals is barred in respect of all the matters `touching business of the society'. The terms business of the society has not been defined in Act, 1925 but the same has been interpreted in the case of Ch. Nazir Ahmad (supra). The Hon'ble Supreme Court held that the service matters of employees are not referable to arbitration as these are not `dispute touching the business of the society' under section 54 of Act, 1925. The same was the view of the Quetta and Sindh High Courts as is clear from the case of Muhammad Iqbal and J.J. Miranda v. Fishermen Cooperative Society, Karachi etc. (PLD 1978 Kar. 990), therefore, it is held that the matter of retirement of respondent No. 2 from its service was not covered by section 54 of the Act, therefore, the jurisdiction of the Labour Court was not barred under section 70‑A of the Cooperative Societies Act, 1925.

5. Now coming to the other legal argument that since the petitioner society was established only to cater for the needs of its members. The society inn its functioning resembled to a local body and by no stretch of imagination Fan be called a commercial or industrial organisation, therefore, the grievance petition under section 25‑A of the I.R.O. was not competent. The learned counsel for the petitioners as well as the workman both have referred to the bye‑laws of the society specially to bye‑law No. 4 dealing with the objects. The same reads as under:‑‑ Objects: " ..The objects of the Society are to promote the economic and social interest of its members and more particularly to lay out, establish and maintain a garden town." Thereafter, reference was made by them to functions particularly clauses (b) to (d). The same reads as under:‑‑ Functions: (a) ........................................................ (b) to bring into existence construct, manage and maintain works, services and institutions or various kinds for the convenience and benefit of members residing in the town; (c) to sell, mortgage or lease land, houses, house sites and all other properties, movable or immovable, as may be necessary for the carrying out of any of the objects of the society; (d) to construct residential houses and other buildings for private and public use and to provide amenities such as schools, hospitals, parks and playground for the convenience of members." Before proceedings any further it is relevant to refer the definition of `Workmen' as appearing in section 2(xxviii), which reads as under:‑ "`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 an establishment or industry for hire or reward either directly or through a contractor whether the terms of employment be express or implied, and for the purpose of any proceeding under this Ordinance in relation to an industrial dispute includes a person who has been dismissed discharged, retrenched, laid off or otherwise removed from employment in connection with or as a consequence of that dispute or whose dismissal, discharge, retrenchment, lay‑off or removal has led to that dispute but does 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 of duties attached to the office or by reason of the powers vested in him, functions mainly of managerial nature." It is dear from the above definition that it includes persons employed in an establishment or industry, therefore, the definition of `Establishment' becomes relevant. The same appears in clause (ix) and section 2, which reads as under:‑‑ "Establishment means any office, firm, industrial unit, undertaking, shop or premises in which workmen are employed for the purpose of carrying on any industry and except in section 22‑EE, includes a collective bargaining unit, if any, constituted under that section in any establishment or group of establishments." While `industry' has been defined in clause (xiv) of the same section and reads as under: "Industry means any business, trade, manufacture, calling, service, employment or occupation." Now if the above definitions are read with preamble of I.R.O. then it becomes clear that the object/pursuit of the employer is immaterial. The only important thing is employment of persons for carrying out its aims and objects. The definition is wide and takes into folds all sorts of employment. I am fortified in my view by the provision of section 1(3), which provides and it shall not apply to categories of employees mentioned in clauses A to H and subsection (3‑A). If the argument advanced on behalf of the petitioners was correct then these categories already stood excluded from the purview of the I.R.O. and there was no point in once again excluding them. On the other hand, this proves that the Legislature wanted to extend the cover of I.R.O. to all sorts of workers. I am fortified in my view by the judgment of the Hon'ble Supreme Court reported as Don Basco High School v. Asstt. Director, E.O.B.I. (PLD 1989 SC 128).

6. This is not all. Even the term `Industry' amongst others includes `Service'‑If looked from this angle the petitioner society would be covered even by the term .`industry', while the definition of `Establishment' open with the words means any office, etc. The society cannot be, at least excluded, from office and the other important ingredient employment of workmen. The definition of `Workmen' as already noted means any person employed in an establishment or industry for hire or reward, therefore, it is concluded that the provision of I.R.O. are applicable to the workmen employed by the petitioner society.

7. This brings as to rule 61 of the Cooperative Model Town Society (1962) Ltd. Employee Service Rules, 1969. This rule was added on 24-10-1983. The same reads as under:-- (i) After he has completed twenty five years service qualifying for pension or other retirement benefits, as the competent authority may direct; or (ii) When no such direction is given under Rule (i) on the completion of sixtieth years of age." The rule is practically reproduction of section 12(2) of the Civil Servant Act perhaps for the reason that at the relevant time a bureaucrat was the administrator of the society. The section 12(2) of the civil Servant Act, 1974 and the similar provisions in other enactment were examined by the Shariat court and then by the Shariat Bench of the Hon'ble Supreme Court in the case titled' Pakistan v. Public‑at‑large (PLD 1987 SC 304). The vires came into consideration and it was observed as under:‑‑ "In the light of this brief discussion of the few Quranic Injunctions and in view of what punishment, deprivation and disgrace a civil servant suffers by application of impugned law, can it be said that the Quranic Justice visualised above would be satisfied without notice and without affording an opportunity of defence against such an action. The answer is in the negative." It was concluded that the impugned provision of law as they stood at the relevant time were against the injunctions of Islam as contained in Quran and Sunnah. Then proviso was added to section 12 in the light of the rule laid down by the Hon'ble Supreme Court. The same now reads as under:‑‑ "12************ Provided that no order under clause (1) shall be made in respect of a civil servant unless the competent Authority has informed him in writing of the grounds on which it is proposed to make the order and has given him an opportunity of showing cause against him". But unfortunately nobody bothered about the rule 61 of rules, 1969. This is not all. Respondent No. 2 clearly alleged that the action was mala fide and manoeuvred by the Deputy Administrator of the petitioner society but the said official did not enter into witness‑box to controvert the allegations while R.W. 1 simply showed lack of knowledge about the ill‑will of the Deputy Administrator towards respondent No.

2. The action was proved mala fide. The learned counsel for the respondent No. 2 rightly referred to the case of Muhammad Ikramullah (supra) and argued that mala fide act stands on the same footing as act without jurisdiction. There is also merit in the argument that the respondent No. 2 completed 25 years of service entitled him to pension on 9th October, 1983 while his services were terminated on 13‑2‑1984. There is nothing on record to show that the action was in process, therefore, this also tends to prove that the whole exercise was mala fide.

8. The upshot of the above discussion is that there is no merit in this petition. The same is dismissed with costs. AA./C‑56/L Petition dismissed.