2008 PLP 161 (PLC)

SYED HAMID ALI SHAH, J.

The respondent served upon the petitioner, notice to get itself registered with institution, which the petitioner declined on the ground that Employees Old Age Benefits Act, 1976, has no application to the education institutions. The petitioner has invoked extraordinary constitutional jurisdiction of this Court, calling in question the impugned notice on two-fold argument. Firstly, the educational institutions are not involved in gain, do not fall within the definition of industry. Secondly teachers do not fall within the definition of industry.

2. It is contended I 'by learned counsel for the petitioner that Honourable Supreme Court of Pakistan in the case of bon. Basco High School v. Assistant Director EOBI and others 'PLD 1989 SC 128, has found school/educational institution, falling within the ambit and definition of establishment under the provisions of Employees' Old Age Benefits Act, 1976 but so far as its, employees are concerned, they are not workmen as have been held by this Court in the case of Board of Governors Aitchison College, Lahore v. Punjab Labour Appellate Tribunal and others 2001 PLC

589. The judgment of the apex Court in the ease of Don Basco School (supra) has decided the status of employee of educational institution as workman, therefore, the above judgment of this Court will apply where employee of school has been held, not a workman. Learned counsel went on to argue that definition of employee as defined in EOBI Act, 1976, is similar to as given in Industrial and Commercial Employment (Standing Orders) Ordinance, 1968. Workman as defined in 2(i) of the Industrial and Commercial Employment (Standing Orders) Ordinance, 1968, is more or less the same as of employee. Teacher has been held not a workman on the basis of definition in section 2(i) of Ordinance, 1968. Learned counsel on this analogy has submitted that teaching staff of University does not fall within the definition of employee and as such provisions of EOBI Act, do not apply to the petitioner. It was submitted that remedy of appeal has not been availed as question of interpretation of provisions of various statutes is involved. Learned counsel for the respondent on the other hand has submitted that EOBI Act, speaks of "Employee" and not of a workman. Teaching and other staff, who qualify to the definition of employees are subject to the provisions of Act, 1976. Learned counsel has submitted that remedy of appeal before the Board of Trustees is available to the petitioner, which has not been availed and as such this petition is not competent. Learned counsel supported this contention by referring to the cases of Messrs Rupali Polyester Ltd. v. Employees Old Age Benefits Institution and another 1991 PLC 318, Dean Children Dress Co. v. Employees' Old Age Benefits Institution and others 1994 PLC 545 and Dadabhoy Investments (Pvt.) Ltd. Karachi v. Privatization Commission through Director-General', Islamabad and 2 others PLD 2006 Kar. 437.

3. I have heard the learned counsel for the parties and perused the material available on the record.

4. The applicability of Employees Old Age Benefits Act, 1976 is not denied. Honourable Supreme Court of Pakistan in the case of Don Basco School (supra), has examined this question and found that school/institution even not maintained for profit or gain, fall within the purview of the provisions of EOBI Act, 1976: The provisions of Act, 1976 when held applicable to the educational institution, the applicability of these provisions cannot be escaped by resorting to definition of workman, which has no relevance to the case in hand. For the purposes of Act, 1976 term "Employee" is relevant. Teacher falls within the meaning of employee as defined in section 2(bb) of the Act 1976. The questions raised in this petition are contrary to the dictum laid down by the apex Court in Don Basco School's case (supra).

5. There is another aspect of the case that the petitioner has not availed the remedy of. appeal before the Board of Trustee, EOBL The remedy of appeal is adequate and in view whereof this petition is not competent.

6. For the foregoing, this petition has no force and is accordingly dismissed. H.B.T./U-8/L Petition dismissed.