1981 PLP 403 (PLC)

SALEEM AKHTAR, J. This judgment will dispose of both the Constitu tion Petitions as the only question involved and argued is whether, in C. P. No. 250/76, "University" and in C. P. No. 311/77 the Board of Intermediate, Education, Karachi is an industry as defined under Industrial Relations Ordinance. In Constitution Petition No. 250/76 briefly the facts are that under the provision of Industrial Relations Ordinance, 1969 the petitioner was regis tered as a Trade Union in respect of Class III and Class IV category of employees of University of Karachi. It has been alleged in the petition that since 1972 the University has recognized the petitioner Union as a body of workmen representing Class III and IV Employees consisting of non‑teaching staff. In March, 1975 the Registrar of Trader Union, the: respondent No. 1 filed an application under section 10 (1) of Industrial Relations Ordinance, 1969 before the IIIrd Sind Labour Court, Karachi praying that the registration of the petitioner's Union may be cancelled. The petitioner filed objections but as it remained absent the matter proceeded ex parte. Relying upon the affidavit died on behalf of the respon dent No. 1 and the judgment of the Labour Appellate Tribunal in Aisha Bawany's case holding that the educational Institutions are not industries, the respondent No. 2 by its order dated 17th May, 1975 cancelled the registration of the petitioner. The petitioner filed an appeal against this order on 24th October, 1975. The learned Appellate Tribunal agreeing with the preliminary objection that though no period of limitation has been fixed for filing appeal, it should be filed within a reasonable time, proceeded to consider the appeal on legal issues and maintained the order of the Labour Court. This order of learned Appellate Tribunal has been challenged in this petition. In Petition No. 311/1977 the petitioners were permanent employees of respondent No.

1. The petitioner No. l was a member of the executive committee of the Board of Intermediate Education Employees' Union and petitioner No. 2 was its active member. The said Union was duty regis tered with the Registrar of Trade Unions who subsequently issued a certificate recognising it as the collective bargaining agent in respect of the employees of respondent No. 1 on 22nd April, 1.975 the said Union served a notice under section 26(I) of industrial Relations Ordinance, 1969 with a charter of demands. On 23rd May, 1975 a deputation of the Union of which petitioner No. 1 was a member called on respondent No. 1 for negotiation. On 28th May, 1975 the respondent No. 1 suspended all the members of the Executive Committee of the Union including the petitioner No.

1. The suspension order of petitioner No. l which was in the first instance for a p.‑rind of l month was extended from time to time, It is alleged that the respondent No. I also indicated to the Union that all its members were suspended and were barred from entering the premi ses. The joint body of the members of the said Union then set up a coordination committee with petitioner No. 2 as its Chairman for negotia tion with the respondent No.

1. The petitioner No. 2 was also suspended on 18th July, 1975 and a show‑cause notice was served alleging that the petitioner No. 2 had joined and allowed himself to be a member of the unlawful assembly and was guilty of abetting the commission of acts of gross misconduct. The Union filed an application under section 3‑Z, Industrial Relations Ordinance on 16th August, 1975 before the IInd Sind Labour Court praying for setting aside the order of suspension. This application was dismissed on 26th January, 1976 mainly on the ground that the respondent No. 1 being an institution controlling educational institutions could not be termed as an industry and the provisions of Industrial Relation Ordinance were not applicable. An appeal filed against this order was dismissed by the learned Sind Labour Appellate Tribunal on 3rd March, 1976. The Registrar of Trade Union moved an application before the learned First Sind Labour Court, Karachi seeking, the cancella tion of the registration of the Board of Intermediate Education Employees' Union, which was on 25th February, 1976 and the registration of the Union was cancelled. The respondent No.1 charge sheeted, the petition ers and an enquiry was held for which petitioner's nominated Mr. Zahid Arshad Ansari as their representative. It is alleged that after they had nominated their Representative the Enquiry Officer did not permit the petitioners to participate or‑appear in the enquiry proceedings and no copy of the proceedings was ever supplied to the petitioners. By notice dated 10th November, 1976 the service of the petitioners was terminated. As the grievance notice submitted by the petitioners was not replied by respondent No, 1 they filed applications under section 25‑A, Industrial Relation Ordinance which were dismissed by the order of the Sind Labour Court passed on 14th September, 1976 mainly on the round that Industrial Relations Ordinance was not applicable to the respondent No.

1. Appeal filed against the order was also summarily dismissed by the Labour Appellate Tribunal. In Petition No, 311/77 the petitioners have challenged the orders passed against them. We have heard Mr. Obaidur Rehman and Mr. Ali Amjad Advocates for the petitioners and Mr. Hussain Adil Khatri and Mr. Abdul Sattar Shaikh, the Additional Advocate‑General for the respondents The respondents have not filed counter‑affidavit in any of the petitions and the only point urged in the petitions is that the University and the Board are industries within the meaning of Industrial Relations Ordinance The learned counsel for the respondents, however, contended ho otherwise in C. P. No. 311 77 it has been further contended on behalf of the respondent No. I that in view of the section 1 (3) of the Industrial Relations Ordinance, the provisions of the Ordinance are not attracted as the petitioners are employed in the: "administration of the State". Similar question came up for consideration before a Division Bench of this Court to the case of Sind Road Transport Corporation and 2 others v. Staff Union and 2 others (1975 P L C 361) in which was followed in the case of Mechanical Engineer, U. S. M. D., Sukkur and 4 others v. Andrew John and 2 others (P L D 1978 Kar. 503). In both the cases it Vas held that "the expression `administration of State' is to be interpreted in the limited and narrow sense of the practical management and direction of the executive or of the operation of various organs of the sovereign or the conducting or carrying on the details of the Government." In view of the aforestated judgments the respondents' contention last mentioned has no force. The entire controversy revolves round the crucial question whether University and the Board can be treated as industry. The definition of the term "Industry" given in section 2 (xiv) of Industrial Relations Ordinance reads as follows: ‑ Industry means any business, trade, manufacture, calling service, employment or occupation." Mr. Obaidur Rehman and Mr. Ali Amjad, the learned counsel for the petitioners have contended that the activity of the University and the Board will be covered by the word "Service" and should be treated as an "Industry". The word Industry has been the subject matter of consideration by the Courts of our country as well as those across the border. The petitioners have entirely relied upon the case of Banglore Water Supply & Sewerage Board v. A. Rajappa and others (A I R 1978 S C 548). Where after reviewing the previous judgments it was held that University is an Industry. In the case of University of Delhi and another v. Ram Nath and another (A I R 1962 S C 1080) it was held that University is not an Industry. This view has now been overruled in India. The word "Service" is the key to the problem. The concept of the word 'Industry' particularly as a statutory and artificial definition has been given, connotes an organised activity in purposeful and material pursuit in continuity which is not casual and isolated in nature, In Industry co‑operation of workmen and employer is of necessity required for efficient and smooth running aimed at higher production or providing material service. The word 'Industry' has been defined to include "Service". Whiles referring to the definition of the word "Industry" which was altered and enlarged by Ordinance XIX of 1970 Dorab Patel, J. (as he then was) in Furgusons' case (1974 P L C 98) observed that "this was after industrial development had gathered momentum in the country, and necessary result of such development is the growth of what are called the service industries ; shops, hotels, eating houses, restaurants, clubs and cinemas, etc. These are some of the instances of service as contemplated by the word `Industry'. The word "Service" in its literal sense is so wide that it may cover all services including services of personal, domestic, isolated and casual nature. While quoting and agreeing with the observation made by Supreme Court of India in the case of the State of Bombay and others v. The Hospital Mazdoor Sabha and others (A I R 1960 S C 610) Dorab Patel, J. in Furguson's case observed as follows :‑ "

5. However, I would pause here to point out that Mr. Brohi 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 clings 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 some where .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." Ganjendragadhkar, J, in Hospital Mazdoor Sabha case while explaining the term of "Industry" laid emphasis on providing or rendering material service and observed as follows :‑ " .as a working principle it may be stated that an activity systematically or habitually undertaken for the production or distribution of goods or "for the rendering of material service to the community at large or part of such community with the help of employees is an undertaking. Such an activity generally involves the co‑operation of the employer and the employees and its object is the satisfaction of material human needs. It must be organized or arranged in a manner in which trade or business is generally organized 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 employees 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) applies". It therefore seems to be accepted at all hands that the word `service' is of very wide connotation and a line should be drawn and, limitation should be implied in interpreting this word. However, in Banglore Water Supply & Sewerage's case the Supreme Court of India seems to have refused to draw any line and relying entirely upon the Australian Gase and Socio‑economic considerations held that education is pre-eminently a service and University is an Industry. The Supreme Court of India in Banglore Water Supply & Sewerage's case came to the conclusion after discussing the earlier judgments decided in that country. On the other hand Shafiur Rahman, J in K. G. Old v. Presiding Officer, Punjab Labour Court (P L D 1976 Lah. 1097) after ; considering those judgments of the Australian and Indian Courts, referring to the legal and Constitutional provisions in the Australian and Indian Legislation and after historically analysing the Industrial Relations Ordinance and applying the accepted principles of interpretation observed as follows : "The upshot of the entire discussion is that the use of the expressions "Business Trade, Manufacture, Calling, Service, Employment or occupation" is the definition. Industrial Relations Ordinance not in its ordinary dictionary in its popular and conventional meaning. In the context of industrial and labour these expressions apply to any enterprise which is organized and is systematic depending substantially, if not entirely, on the co-operation 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 find out its raison d'etre, and any part of it which is incidental, ancillary or an adjunct cannot determine the character of the whole." In the present case, unlike Furguson's case, where words `calling and occupation' were mainly under consideration, the word "service" is to be interpreted. It is generally accepted that the nature of services provided should be material that is why in all the judgments emphasis has been laid that a line has to draw to save from the sweep of generality. Considering the observations of various Courts it seems that only that service will fall within the ambit of industry which in nature is a "material service". M. Hidayatullah, C. J. Supreme Court of India in Safdar Jung Hospital's case explained the term "material service" in the following words : ‑ "Material services involve an activity carried pan through co‑operation between employers and employees to provide the community with the use of something such as electric power, water, transportation, mail delivery, telephones and the like. In providing these services there may be employment of trained men and even professional men, but the emphasis is not on what these men do but upon the productivity of a services organised as an industry and commercially valuable. The words Industry'' and "Service" are capable of various inter pretations which may differ according to ones approach, notions, socio economic consideration and ideology. But as these words find place in statute called Industrial Relations Ordinance which primarily relates to material and economic activity they have to be interpreted to the same colour and scheme of things. Therefore, only that service which is material in nature and is the outcome of an organised economic activity in continuity with the co‑operation of the worker and management will be treated as Industry. In the present case it is to be considered whether the education and training imparted by the University and the function performed by the Board will be covered by the word `'Service" so as to declare them as an Industry. The importance of education can neither be ignored nor denied. Education is designed to guide a man in learning and culture, and mould him towards his eventual role in society. Education through the institu tions like schools, colleges and Universities is agent of cultural transmission. Culture depends upon continuity, and these institutions help to provide it by transmitting accumulated knowledge and skills and values and beliefs. Schools, colleges and Universities help in building up character and such qualities as honestly, piety, thrift and industriousness. Besides this they impart knowledge of art, philosophy, science, literature and last but not the least the professional expertise to meet the challenge of time and growing expansion in all fields. From the very inception of our society prune emphasis has been on learning and education. The learned people and institutions have always commanded high esteem respect and reverence. It is a source of all knowledge and learned where people come to learn and go forth to serve. Education is the fountainhead of all inventions, sciences, technology, research, learning and knowledge. The benefit a student gets or the community at large receives from the University is completely different and distinguishable from the benefit of service which provide the community with the use of something such as hotel, electric power, transportation, mail delivery, etc. The University serves the students intellectually, morally and mentally. The service rendered by the University entirely depends upon the contribution of the learning, research, study, knowledge of the men of letters. It is this distinctive character of the University which absolutely distinguish it from institu tions providing material service. This absence of material nature of service keeps the University and the Board ant of the pale of the word Industry. Education is not a service it is a duty. Its acquirement is no longer voluntary but undisputedly it is being made compulsory. The Universality and cosmopolitan nature of education keeps it completely distinct and distinguished from material service. Education is of such universal importance that in all countries, the Government have owned it .as their obligation and duty towards the people. These considerations in our view are sufficient to draw a line and save it from the sweep of generality. The petitioners have solely relied upon the judgment of the Supreme Court of India in Banglore Water Supply & Sewerage's case which seems to have put at rest the judicial controversy which was raging there. With due respect to the learning and erudition of the learned Judge, it cannot escape our notice that the judgment is based on application of principle of purposive interpretation which has yet to find full recognition. The approach to the subject has been made in the following manner :‑ "A look at the definition, dictionary in hand decisions at head and constitution at heart leads to some, sure character‑sticks of Industry narrowing down the twilight zone of turbid con troversy." Again the following principles of interpretation as enunciated by Lord Denning in Seaford Court Estates Ltd. v. Asher ((1949) 2 K B 481) was. the basis :‑ "The English language is' not an instrument of mathematical precision. Our literature would be much poorer if it were .....He (Judge) must set to work in the constructive task of finding the intention of Par liament, and he must do this not only from the language of the statute but also from a consideration of the social conditions which gave rise to it and of the mischief which it was "passed to remedy, and then he must supplement the written word so as to give force and life' to the intention of the Legislature A Judge should ask himself the question, how, if the makers of the Act had themselves come across this ruck in the texture of it, they would have straight ened it out ? He must then do so, they would have done. A Judge must not alter material of which the Act is woven, but he can and should iron out the creases." The approach of Lord Denning did not find favour with the House of Lords. Lord Denning referring to the Sea Ford Case, in his book, The Discipline of Law writes "the new approach did not last long." Only a year later it was roundly condemned by House of Lords in Magor de St. Mellons Ruval District Council v. New Port Corp" ((1950) 1 All E R 1018) The disapproval can be seen from the harsh language used by Lord Simonds : "It appears to me to be namred usurpation of the legislative function under the thin disguise of interpretation" Lord Monton (with whom Lord Goddard entirely agreed) observed "these heroics are out of place". Hamidullah Beg, C. J. Supreme Court of India who wrote a short judgment having noticed these observations observed that "In his heroic efforts my learned brother Krishna Iyer if I may say so with great respect, has not discarded the tests of industry formulated in the past". It is thus to be seen that while interpreting the words `Industry" and "Service Prin ciple" of purposive interpretation was applied. This was bound to give a wide meaning based on various considerations including the socio‑economic and progressive theories governing the employer and employee relationship. The interpretation has thus crossed the recognized barriers and limits placed by the time tested principles and with respect we may say that taken further to its logical conclusion it may amount to a judicial aggression. The University of Karachi Act, 1972 (Act XXV of 1972) determines the character of the University of Karachi. Section 4 of the Act provides the powers of the University which is reproduced hereunder :‑‑ "

4. Powers of the University.‑The University shall have the power‑ (a) to provide for instruction in such branches of learning as it may deem fit, and to make provision for research and for the advance ment and dissemination of knowledge in such manner as it may determine ; (b) to prescribe courses of studies to be conducted by it and the colleges ; (c) to hold examinations and to award and confer degrees, diplomas, certificates and other academic distinctions to and on persons who have been admitted to and have passed its examinations under prescribed conditions ; (d) to confer honorary degrees or other distinctions on approved persons in the manner prescribed ; (e) to provide for such instruction for persons not being students of the University as it may determine, and to grant certificates and diplomas to such persons ; (f) to confer degrees on persons who have carried on independent research under prescribed conditions (g) to affiliate and disaffiliate educational institutions under prescribed conditions ; (h) to admit educational institutions to its privileges and to withdraw such privileges under prescribed conditions ; (i) to inspect colleges and other educational institutions associated or seeking association with it ; (j) to accept the examinations passed and the periods of study spent by students of the University at other Universities and places of learning as equivalent to such examinations and periods of study in the University, as it way determine; and to withdraw such accept ance ; (k) to co‑operate with other Universities and public authorities in such manner and for such purposes as it may determine ; (l) to institute Professorships, Associate Professorships, Assistant Professorships and Lecturerships and any other posts and to appoint persons thereto ; (m) to create posts for research, extension, administration and other related purposes and to appoint person thereto (n) to recognize selected members of the teaching staff' of affiliated colleges and colleges or educational institutions admitted to the privileges of the University or such other persons as it may deem fit, as University Teachers ; (o) to institute and award fellowships, scholarships, exhibitions, bur saries, medals and prizes under prescribed conditions ; (p) to establish Teaching Departments, schools, colleges, Faculties, institutes, museums and other centres of learning for the development of teaching and research and to make such arrangements for their maintenance, management and administration as it may deter mine ; (g) to control the residence of students of the University and the colleges to institute and maintain halls of residence and to approve or licence hostels and lodgings ; (r) to supervise and control the discipline of the students of the Univer sity and the colleges, to promote the extra‑curricular and recrea tional activities of such students, and to make arrangements for promoting their health and general welfare ; (s) to demand and receive such fees and other charges as it may determine ; (t) to make provision for research and advisory services and with these objects to enter into arrangements with other institutions or with public bodies under prescribed conditions ; (u) to enter into, carry out, vary or cancel contracts ; (v) to receive and manage property transferred and grants, bequests, trusts, donations, endowments and other contributions made to the University and to invest any fund representing such property, grants, bequests, oust gifts, donations, endowments or contributions in such manner as it may deem fit ; (w) to provide for the printing and publication of research and other works ; and (x) to do all such other acts and things, whether incidental to the powers aforesaid or not, as may be requisite in order to further the objects of the University as a place of education, learning and research." The duties performed by the members of the petitioners in the words of Shafiur Rahman, J. are incidental, ancillary or an adjunct to the main object and purpose of the University and therefore it cannot determine the character of the University. Likewise the Board of Intermediate Education, Karachi owes its geneses to the Sind Intermediate and Secondary Education, Ordinance No. VI of 1972 as amended by Act XX of 1973 and X of 1974. Under section 11 of the Ordinance the Board shall organise, regulate, develop and control Intermediate Education or Secondary Education and shall have the following powers :‑ (i) to hold and conduct all examinations pertaining to Intermediate Education and Secondary Education and such other examinations as may be determined by Government; (ii) to lay down conditions for recognition of institutions ; (iii) to accord, refuse or withdraw recognition wholly or partly, after considering inspection reports‑‑‑ (a) in the case of Schools, received from the Education Department, Government of Sind ; and (b) in the case of Intermediate Colleges, received from an Inspection Committee appointed by the Board in this behalf ; (v) to inspect and arrange for inspection of recognised institution and call for inspection reports ; (vi) to lay down conditions for admission to its examinations, to determine the eligibility of candidates and to admit them to the' examinations ; (vii) to grant certificates and diplomas to persons who have passed its! examinations and to withdraw such certificates and diplomas ; (viii) to fix, demand and receive such fees as may be prescribed (ix) to supervise the residence, health and discipline of the students, of recognised institutions and classes with a view to promoting their general welfare ; (x) to institute and award scholarships, medals and prizes in accordance with the Regulations and Rules " Looking to the nature and character of the duties performed by the Board and judged in the light of the above discussion we are of the view that the Board cannot be termed as an Industry. . . In the result we dismiss both the petitions with no order as to costs. Petition dismissed.