1991 PLP 542 (PLC(CS))

Nemo for Respondent. Date of hearing; 9th October, 1989. This is an appeal against the order of learned Presiding Officer, Sindh Labour Court No. I at Karachi, dated 14-9-1988, whereby he allowed the grievance petition of the respondent and ordered his reinstatement without back benefits.

2. The facts of the case are that the respondent was admittedly employed as Electrician by appellants on monthly pay of Rs. 800 vide order dated 25-4-1983. His services were terminated vide order dated 30-11-1985 and he was given one month's pay in lieu of notice. Being aggrieved by this order the respondent after service of grievance notice filed the grievance petition which was resisted by the appellants on the ground that they were religious and charitable Trust and the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 was not applicable to them and also because they employed less than twenty workers.

3. I have heard Mr. Muhammad Tasnim, Advocate for the appellants. Respondent called absent though served. I have also gone through the record and proceedings of the case. .

4. Under Clause (a) of subsection (4) of Section 1 of the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, the Ordinance would be applicable to all the industrial and commercial establishments wherein twenty or more workers are employed.

5. It is not contended that the appellant is an industrial establishment but it is contended that it is a commercial establishment as it charges fees from students of school and also from patients in the hospital and rent from tenants. A 'commercial establishment' is defined under section 2(b) of the said Ordinance as under:-- " Commercial establishment' means an establishment in which the business of advertising, commission or forwarding is conducted or which is a commercial agency, and includes a clerical department of a factory or of any industrial or commercial undertaking, the office establishment of a person who for the purpose of fulfilling a contract with the owner of any commercial establishment or industrial establishment, employs workmen, a unit of a joint stock company, an insurance company, a banking company or a bank, a broker's office or stock exchange, a club, a hotel, a restaurant or an eating house, a cinema or theatre, and such other establishments or class thereof, as Government may by notification in the official Gazette, declare to be a commercial establishment for the purpose of this Ordinance:'

6. The evidence produced by respondent does not show that the appellants carry on any business which is mentioned in the definition of `commercial establishment'. The evidence of Syed Sarwar Hussain, Managing Trustee of the appellants shows that appellant is a charitable, religious and educational Trust. From his cross-examination it appears that they are running a school and each student is paying fee of Rs.100 per month. It also shows that the Trust owns certain shops and offices which are given on rent and also runs a hospital. The definition of `commercial establishment' clearly shows that neither school, hospital nor mosque is included in the definition of `commercial establishment: It also does not include the establishment which owns buildings and rents them out. There is no evidence that such classes of establishments have been notified or declared by the Government to be `commercial establishment' for the purposes of this Ordinance. Therefore, in my opinion, the aforesaid Ordinance would not be applicable in the case of the appellants.

7. The respondent, no doubt, is a "workman" as defined m the Industrial Relations Ordinance, 1969 but he can move the Labour Court under section 25-A only for enforcement of his right guaranteed under some law, settlement or award. The I.R.O. itself does not guarantee any right to the respondent which has been infringed. No award or settlement has been produced by the respondent which he wants to enforce. The principle of natural justice also does not appear to have been violated as Annexure `B' produced by the respondent with the grievance petition shows, that before his removal from service he was given a show-cause notice. Annexure `C' is `answer' to show-cause notice, whereas he was dismissed by Annexure C-1. Mr. Mohammad Tasnim, learned counsel for the appellants relied upon the case of Medical Educational Uplift Fund Association of Seventh Day Adventists in Pakistan v. Fifth Sindh Labour Court, Karachi and others P L D 1976 Karachi 536 wherein learned Single Judge of the Sindh High Court observed that Hospital a charitable hospital run on no profit basis does not fall within the scope of commercial establishment or industrial establishment under the West Pakistan Industrial and Commercial Employment (Standing Orders) Ordinance, 1968 and the employees of such establishments were not `workmen' within the said Ordinance so as to entitle them to invoke jurisdiction under section 25-A of the I.R.O., 1969.

8. In my opinion, the evidence on record does not show that the appellants are an industrial or commercial establishment as defined under the said Ordinance and therefore the respondent could not have invoked the jurisdiction of the Labour Court under section 25-A to enforce any infringement of rights guaranteed under the Standing Orders Ordinance, 1968. There is no evidence to show that any right was gauranteed under the I.R.O., 1969, which has been infringed. I, therefore, allow the appeal and set aside the impugned order of the Labour Court. M.YH./1574/Lb.S Appeal allowed.