1991 PLP 605 (PLC)

the primary and inalienable functions of Constitutional Government do not `industry'. Isaacs, J., in The Federal State School u1 of Australia v. The State of Victoria (1928-29) 41 t page 585: Regal Functions are inescapable and inalienable. Such are the administration of laws, the exercise of the judicial functions may be assumed by means of legislative icy are assumed the State acts simply as a huge s legislation as the charter. Its action under the is it is not regal execution of the law is merely a private company similarly authorised."

7. In my opinion the later dicta such as those stated in the case cited below limits set down in the cases, such as the Employees 1972 P L C 285 where Mr. Justice (Retd.) Inamullah Tribunal held that the phrase "employed in the given a meaning other than persons employed in Sindh Road Transport Corporation and 2 others v. Staff P L C 361, also the phrase "employed in the is up for interpretation before a Division Bench of as held that persons employed in the Sindh Road not the persons employed in the administration of the expression "`administration of the State' is to be and narrow sense of practical management and direction or of the operation of the various organs of the sovereign or the conducting or carrying on of the details of the Government".

8. Placing reliance on these decisions Mr. Justice S.A. Nusrat in Sindh High Court (as his Lordship then was) observed in case cited as Mechanical Engineering V.S.M.D. Sukkur and 4 others v. Andrew John and 2 others P L D 1978 Kar. 503 "that persons unconnected with the actual performance of administrative or executive duties of the State and engaged in manual or menial work such as Filters, Electricians, Drivers and Sweepers etc. cannot be considered as persons employed in the "administration of the State" and (are) hence outside the purview of the Ordinance".

9. Since the membership of the petitioner union seeking registration comprises the categories unconnected with the actual performance of administrative or executive duties of State, and is composed of the workmen, employed as drivers, fitters and mechanics, etc this argument is also devoid of force.

10. The main argument which has been pressed with quite some vigour by learned counsel was that (a) since NLC is a goods transport organisation requiring quick off-loading and timely moving of the essential commodities like wheat, fertilizer and for carrying crude oil from oil fields to oil refinery as asserted in paras. (r) and (s) of the affidavit DD-A, it is not a service or installation connected with or incidental to the Armed Forces of Pakistan. He produced Exh. PD.-1 being a copy of a page of Daily Nawa-i-Waqat dated 23-3-1989 showing an advertisement by NLC holding itself out as goods transport service for the general public on commercial basis. He referred to the function of organising breading of livestock, processing of meat and marketing within and outside the country, organising dairy/poultry farming etc., in the founding document (Exh. DDC-page 2) of the National Logistic Board (hereinafter referred to as the `NLB'. He pointed to the role of NLC in selling sugar at various sale points in the country. He said that NLC which is to implement the decisions of the NLB is, therefore, a commercial establishment, and is not a service or installation connected with Armed Forces of Pakistan. In the alternative he argued that even if it is connected with Armed Forces of Pakistan it is not performing any service or function directly or indirectly connected, incidental or concerned with functions of Army like Cantonment Boards. He relied on the dictum in case of Quetta Cantonment Board Quetta Cantonment v. Muhammad Ishaq 1980 P L C 229, where Mr. Zakaullah Lodhi, J. Appellate Tribunal held, about the Cantonment Boards, that "they also do not occupy any pivotal position in the Army so as to affect such functions even indirectly, and therefore, they can be conveniently kept at par with those employees of Federal and Provincial Governments who find coverage by IRO".

11. He further said that no executive or administrative authority has treated NLC as connected, with or incidental to the Armed Forces of Pakistan. He produced Exh. PD-2 being copy of Letter No. 4(30) Admn.VII/NLC/PDD/88, dated 18th December, 1988 issued by the Planning and Development Division of Pakistan to prove that on the question of levy and recovery of motor tax from NLC vehicles, the Planning and Development Division of which the NLB is part, decided in consultation with Justice Division that the motor vehicles owned by the NLC were not exempt from tax. He also produced Exh. PD-3 being a copy of Letter No. RWP/R&cC/89/8782, dated 10-6-1989 to prove that the Director, Rawalpindi Region of the Employees Old Age Benefits Institutions had held that "there is no indication whatsoever (that) NLC is an attached Department of GHQ." The plea taken by you vide your letter dated 18-2-1989 is infructuous and not tenable. Therefore, it is in the fitness of things that not to deprive your employees from the benefit available in the EOB Act, 1976 which is clearly applicable to NLC. He argued that if NLC were a military organisation or were connected with Armed Forces of Pakistan both the motor tax and the EOB contribution would not have been levied on it. Further, he said, the NLC accepted these decisions and did not appeal against them in any Court of law.

12. Learned counsel also referred to the Constitution of the NLB Exh.DD-C which showed that Minister of Planning and Development Division was the Chairman of the Board while Ministers for Communications and Railways and the Secretaries Railways, Communications, Finance and Planning and Development were members. The Quarter Master-General of Pakistan Army was the Member/Secretary and Officer Incharge of the NLC. He concluded that neither NLB nor NLC is organisation connected with Armed Forces of Pakistan and the employment of Army personnel is only incidental.

13. The two decisions referred, namely one by the Planning and Development Division of Government of Pakistan and the other by the Director, Employees Old-Age Benefits Institution, Rawalpindi, concerning the liability of NLC to pay motor-tax on its vehicles and the Old Age Benefits contribution for its employees, are both irrelevant. Firstly, they do not deal with the applicability or otherwise of the IRO to the NLC. Secondly, they being executive decisions do not even qualify as legal precedent.

14. Learned counsel has chosen to place reliance on the dictum in the case of Quetta Cantonment Board Quetta Cantonment v. Muhammad Ishaq 198() P L C 229 to state that as held in respect of employees of Cantonment Board, Quetta the employees of NLC also do not perform any function directly and indirectly connected or concerned with the function of Army. This view that the "Cantonment Boards (is) not performing any service or function direct connected incidental or concerned with the functions of the army "however, no longer holds the field. Honourable Supreme Court in a case cited as Rehmat Gill and another v. Quetta Cantonment Board P L D 1983 S C 133 observed: ...... the management and administration of the Cantonments vests in the Cantonment Boards. The Cantonments themselves being the quarters of the Armed Forces, their management and upkeep is necessarily a service which is directly concerned with Armed Forces and only incidentally with civilian population residing .in Cantonments. The employees of the Cantonment Boards are therefore, excluded from the application of Industrial Relations Ordinance Therefore, his argument that since NLC do not perform any direct function in the Army as such they are not connected with Armed Forces of Pakistan is repelled.

15. The affidavit Exh. DDA submitted by Lt.-Col. Nasir Abid, Assistant Director Administration, NLC Rawalpindi on the other hand states in short, that, NLC is one of the Directorates of Quarter Master-General (QMG) of Pakistan Army who is also its Officer Incharge NLC and Member/Secretary of the NLB. The head office of the NLC is situated within the Army Headquarters at Rawalpindi and 60 to 70%u of its manpower is drawn from the Army Military Accountant-General (MAG) and Military Engineering Service (MES) on Secondment or Extra Regimental Employment (ERE). The remaining 30 per cent posts are filled in by Civilian Drivers, Casual Labourers and Daftaries. The three main divisions of NLC are headed by defence personnel besides the posts of managerial and supervisory nature which are also held by the personnel from Armed Forces. All personnel including the civilians employees arc extended the facilities of medical treatment at the Combined Military Hospital (CMH). The NLC vehicles from part of the inventory of Master General Ordnance (MGOI These vehicles also included in the defence planning for movement of troops and stores in emergency and during war.

16. So far as the work of NLC is concerned it is stated that bulk of the work of the NLC is connected with and incidental to the Armed Forces of Pakistan and the State for the transportation of strategic materials. Only a small part of the work relates to the loading and unloading of public luggage and that NLC is allowed transportation of public/private goods only in order to make it viable and is not run on commercial basis.

17. The question is whether this small part of the work relating to the loading and unloading of the luggage etc. of general public and the employment of 30% civilians in the establishment of NLC brings it within the purview of the IRO, 1969 or not. It is argued that at any rate NLC is not exclusively connected with or incidental to the Armed Forces of Pakistan. This argument is without force. If the NLC renders services to the general public as a small part of its functions and a major portion of its functions is connected with the Armed Forces of Pakistan, then this will not detract or change the character of the NLC, if it is otherwise connected with or incidental to the Armed Forces of Pakistan. A similar question arose in the case of Canteen Store Department, Karachi v. Sindh Labour Court No. V, 1977 P L C 421 in which it was argued that as the civilians were also employed in the Canteen Store Department and they also catered to civilians employed in the Defence Department besides the Armed Forces. Therefore, the same was not exclusively connected with or incidental to the Armed Forces. This contention was repelled by Mr. Naeem-ud-Din,J on the ground that if the Department rendered services to the civilians connected with or employed in the defence services it would not disconnect or change the character of the Department, if it is otherwise connected with or is incidental to the Armed Forces of Pakistan. "In my opinion for that reason alone it would not bring the case within the purview of the Industrial Relations Ordinance, 1969".

18. The question whether in order to determine the character of an establishment a part or the whole of its activities are to be seen came up for consideration in the case of K.G. Old, Principal, Christian Technical Training Centre, Gujranwala v. Presiding Officer, Punjab Labour Court, Northern Zone and 6 others 1976 P.L C 1097 wherein it was observed: "The upshot of the entire discussion is that the use of the expressions `Business, Trade, Manufacture, Calling, Service, Employment or Occupation' in the definition of industry in Industrial Relations Ordinance is not in its ordinary dictionary meaning but in its popular and conventional meaning. In the context of industrial and labour laws, these expressions apply to any enterprise which is organised and is systematic depending substantially, if not entirely, on the cooperation between labour and capital, and having as its object production, distribution and consumption of wealth, or the production or provision of material services. The enterprise as a whole has to be looked at to rind out its raison detre. and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole."

19. Applying the above test it cannot be said that since NLC performs certain commercial activities of transporting the goods of general public including other activities of civilian nature, it has forsaken character as transporter of troops and defence material or as an organistion connected with the Armed Forces of Pakistan.

20. Further, it is an admitted fact that the Quarter blaster-General Pakistan Army is the Officer Incharge of the NLC according to section 2 of the I.R.O., 1969. Being a member of the Armed Forces of Pakistan he stands expressly excluded from the purview of the Industrial Relations Ordinance, 1969. Thus, even if the petitioner trade union is registered, it would still not bring about the normal reciprocal legal obligations arising from the registration of a trade union under the I.R.O., 1969. Since the employer would not be legally bound to submit to the procedures and for prescribed and established by the I.R.O., 1969, the very coverage of the workers by I.R.O., 1969, if petitioner's interpretation is followed would lead to futility. The law, however cannot be interpreted in such a manner as to lead to futility. It was laid down by the honourable Supreme Court of Pakistan in the case of Sindh Employees' Social Security Institution and another v. Adamjee Cotton Mills Ltd. P L D 1975 S C 32 at page 35-B: ...... It is equally well-established principle that in construing a statute the construction which is most agreeable to justice and reason is to be preferred. See Maxwell on the Interpretation of Statutes, 1969 Edn., Chapter 10, which sets out an impressive array of ancient and modern precedents in which Courts, by adhering to the above principle and without any violence to the language of the statute, have by liberal interpretation averted what would have been otherwise inconvenient or unreasonable result::. Therefore, if the choice is between the two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, one should lean against a construction which would reduce the legislation to a futility and rather accept the bolder construction based on the view that the Legislature would legislate only for the purpose of bringing about effective results."

21. The argument that the very charter of NLB contains a provision enabling it to branch out its business also to the supply of poultry, livestock, wholesome meat and dairy products etc. to which it may resort to any day and thus change its character to overwhelming commercial nature, is also devoid of force. This argument ventures into domain of imagination for its validity, for the NLB, despite the provision in its charter may not resort to the activities pointed out. The Courts do not decide matters before them on the basis of guesses and surmises.

22. Further, such arguments based on apprehensions not only lose sight of the character of the establishment of NLC, but also ignore what is clearly conveyed by its nomenclature. Word `logistic' which is the central and pivotal word in the NLC and NLB means transportation of troops, their supplies, provisions according to any standard English Dictionary. According to the Shorter Oxford Dictionary it means: Logistic (lodzistiks), sb. pl. 2 1879. (ad. F. Legistique, f. loger to quarter, LODGE: see-ISTIC). The art of moving and quartering troops (i.e. Quarter-Master's work), now especially of organising supplies. According to Chambers 20th Centuary Dictionary it means: Logistic, al, (loj-is'tik, al,) adjs. pertaining to reasoning, to calculation, or to logistic; proportional. n. logistic, the art of calculation: sexagesimal arithmetic: (pl.) art of movement and supply of troops. Gr. logistikos logizesthai, to compute; influenced by Fr. loger, to loge.) According to the Webster's Color Dictionary it means: Logistic, al, (loj-is'tik, al,) a. pert. to calculatings n.pl. (used as sing); (Mil.) branch of military science which deals with the moving of and providing for troops (CK Logizesthai, to compute). According to the Penguin English Dictionary it means: Logistic (lojistiks) n (pl) mil) art of moving and quartering troops; (math.) computation logospref pertainint to speech or words; pertaining to reason.

23. This application for registration of NLC Sherdil Peoples Welfare Union of Pakistan is therefore refused to be registered under section 8(5) of the I.R.O. 1969. M.Y.H./147/NIRC Application for registration refused.